Determining sovereignty: Through law? Or a political option?

Abstract

The European doctrine of discovery was reasonably rejected as a legal basis for the acquisition of territory.1 Australia’s highest domestic court has reasonably held that examining issues of state are outside the jurisdiction of a municipal court.2 Further, the Australian Government has not proposed an alternative basis for the acquisition of territory or successfully claimed sovereignty in a transparent, lawful and fair manner, and this maintains the status quo ante (the status quo of land custodianship before colonisation) which is uti possidetis.3 According to Judge Sebutinde, ‘the Court has never suggested that uti possidetis may be a peremptory norm of international law’4 but it is clearly customary. This article considers this as the correct legal basis at law but also takes into account the significant facts on the ground built in over the last two centuries of colonisation. That is, as things stand, neither the British nor their successors have a theoretical legal basis for their territorial claims over the continent under international law. The current legal position effectively exhausts domestic legal remedies on this important question of law. Exhausting domestic remedies is an important hurdle in seeking to move the dispute for resolution into the international plane, particularly on matters affecting human rights. Show more