The Head Heeb

The Sovereign Democratic Republic of Pitcairn

My intel department in New Zealand informs me that the Pitcairn Island sex crimes defendants, who have previously challenged the existence of the court in which they are to be tried, have adopted an even more radical strategy:

Public defender Paul Dacre yesterday told the Pitcairn Supreme Court, sitting in Papakura, Auckland, that he would question whether Britain has had sovereignty over the remote Pacific island "from the first sighting of Pitcairn Island to the most recent ordinances which have been constituted this year."

I wonder if the islanders have thought out what would happen if they won. Unless they join French Polynesia, which was discussed after most British subsidies were ended in 2000, they would become the world's smallest microstate, with a population under 50. The islands' sources of revenue include about $100,000 a year from domain name sales, a few tens of thousands more from honey exports, handicrafts and postage stamps, and distributions from a trust fund that will go belly-up by 2010.

This might actually be enough to make the islands marginally viable, especially if eked out by fishing and subsistence farming. The islanders could also generate some foreign exchange by turning Pitcairn into the ultimate tax, offshore banking and Internet gambling haven, which they're just wired enough to do. Nevertheless, this would represent a drastic decline in the standard of living, reminiscent of Nauru after the phosphate mines and trust fund ran dry. In addition, British aid is also essential for emergency maintenance of vital infrastructure:

Pitcairn is crucially dependent upon certain key items of infrastructure (including the jetty, long boats and boat shed, and the road from the jetty up to the main settlement). The Islanders routinely maintain these items but major refurbishment or replacement has been carried out with the help of Department for International Development (DfID) funding.

In any event, I doubt that the court will overturn a century and a half of British dominion over Pitcairn. To be sure, the islands' legal history is somewhat murky. For about half a century after the unfortunate misunderstanding between Fletcher Christian and Captain Bligh, Pitcairn was effectively independent. This tumultuous period in the islands' history ended in 1838, when the residents signed a constitution on board the HMS Fly. The Pitcairners often mark this date as the occasion of their incorporation into the British empire. The United Kingdom subsequently assumed formal sovereignty by virtue of the Settlements Act 1887, although it isn't clear what gave it the legal right to do so; it was apparently taken for granted that Britain owned the place. This somewhat casual incorporation might, under other circumstances, cloud Britain's title, and this is precisely what the defendants are arguing:

Mr Dacre said the British Settlements Act 1887, by which Pitcairn has been thought a British overseas territory, did not apply to the island. The act covered territories where there was "no civilised government" and that were the crown's "possession acquired by settlement." Neither applied in Pitcairn's case.

By the time the British found the mutineers' descendants, the community was a pious community with strict rules, he said.

[...]

Co-defence counsel Adrian Cook QC said Pitcairners had never ceded their land. They had never signed a treaty or been conquered.

Counting in Britain's favor, however, is its unbroken and unchallenged exercise of title to the islands since 1838. Whatever may be said of the manner in which the United Kingdom acquired title to Pitcairn, no other state has challenged its sovereignty, nor have the Pitcairners themselves done so until now. Also, until tensions were raised by the recent sex crimes investigation, the authority of the British-appointed governors was acknowledged both on and off Pitcairn.

The issue of whether sovereignty can be obtained through actual possession was recently litigated before the ICJ in the Bakassi dispute between Nigeria and Cameroon, with Nigeria claiming that it had acquired title by effectively governing the disputed area for four decades. The case in favor of effective sovereignty was explained most fully in Judge Koroma's dissenting opinion, which cited a 1951 decision involving a fisheries dispute between Norway and the United Kingdom:

By "historic waters" are usually meant waters which are treated as internal waters but would not have that character were it not for the existence of an historic title. The United Kingdom Government refers to the notion of historic titles both in respect of territorial waters and internal waters, considering such titles, in both cases, as derogations from general international law. In its opinion Norway can justify the claim that these waters are territorial or internal on the ground that she has exercised necessary jurisdiction over them for a long period without opposition from other States, a kind of possessio longi temporis, with the result that her jurisdiction over those waters must now be recognised although it constitutes a derogation from the rules in force. Norwegian sovereignty over these waters would constitute an exception, historic titles justifying situations which would otherwise be in conflict with international law.

Judge Koroma concluded from this that occupancy for sufficient time could confer sovereignty even where legal title was formally vested in another country.

The majority opinion took a somewhat more narrow view of effective sovereignty. Even there, however, it was acknowledged that actual possession could in some cases translate to legal title:

Cameroon also contends that, in order to establish prescription, the acts of the State which does not hold title must be carried out in a sovereign capacity, under a claim of right, openly, peacefully, without protest or competing activity by the existing sovereign, and for a sufficiently long time.

It was conceded, in other words, that a country could acquire sovereignty over territory in a manner similar to the doctrine of adverse possession by which private individuals may gain title to land.

To be sure, the majority opinion held that, in cases where a treaty or other legal document conflicted with a claim of sovereignty by possession, the former would prevail. This proved fatal to Nigeria's claim to Bakassi, because the disputed territory had been ceded in 1913 to what was then the colony of Cameroon. The ICJ also rejected a claim of Namibian prescriptive sovereignty over a disputed border island even where the terms of a delimiting treaty were ambiguous, because its possession was not accompanied by indicia of sovereignty such as effective government.

In the case of Pitcairn, however, there are no documents that confer legal title on any state other than the United Kingdom. In addition, Britain has governed and administered Pitcairn for well over a century, and for part of that time the British governor was the only effective authority. In situations such as this, the rule of international law was set down in a border dispute between Mali and Burkina Faso, as quoted in the dissent of Judge Ajibola to the Bakassi case:

In the event that the effectivité does not co-exist with any legal title, it must invariably be taken into consideration. Finally, there are cases where the legal title is not capable of showing exactly the territorial expanse to which it relates. The effectivités can then play an essential role in showing how the title is interpreted in practice."

The same rule of law was applied recently in deciding a dispute between Indonesia and Malaysia over two islands where no legal title existed. Even if the 1838 constitution isn't sufficient to give Britain legal title to Pitcairn, therefore, it seems inevitable that a court would uphold British sovereignty based on effective administration. Paul Dacre's hopes of winning Pitcairn's independence by litigation are destined to be dashed.

UPDATE: The public prosecutor has responded to the arguments of the defense:

Kieran Raftery, counsel for the Pitcairn public prosecutor, said "the political and factual reality is that Pitcairn is a territory of the United Kingdom. That's a fact known and acknowledged by the United Kingdom, known and acknowledged by Pitcairn and known and acknowledged by the international community".

[...]

Mr Raftery told the court the defence was inviting the judges to declare themselves "justices of nowhere," but the mutineers and their descendants lived in a British colony.

The prosecution also argued that the original Bounty mutiny did not constitute a renunciation of British citizenship, and noted that several of the defendants had ratified their status by applying for British passports.

Posted by jonathan at November 18, 2003 03:18 AM