Ure v Commonwealth of Australia

The special case in Ure v Commonwealth of Australia was filed in the Federal Court of Australia and concerns the justiciability of claims related to the acquisition of proprietary rights over Elizabeth Reef and Middleton Reef by private individuals under international law. The applicant, Ure, claims to own the "full proprietary rights" over these islands, asserting that these rights were acquired by her predecessor in title, Alexander Francis Ure, on behalf of Michael Chan, on or about 19 March 1970. Ure argues these rights were acquired under customary international law, and that the Commonwealth of Australia subsequently acquired sovereignty over the islands in 1997.

The legal issues before the court were whether an allegation that no State, including the Commonwealth, had claimed or acquired jurisdiction or sovereignty over the Islands prior to 19 March 1970 or thereafter is justiciable, whether there exists a customary international law rule by which private parties can obtain proprietary interests in land, and whether there exists a customary international law rule by which States are obliged to recognise and give legal effect to private property rights. The court needed to determine if the claims regarding the acquisition of proprietary rights were justiciable, and whether these rights could be established under international law.

The court found that an allegation that no State, including the Commonwealth, had claimed or acquired jurisdiction, sovereignty and/or sovereign rights over the Islands prior to 19 March 1970 or thereafter is justiciable in the Federal Court. The court could not be precluded from considering or inquiring into such allegations merely by their presence in the pleadings. Regarding the acquisition of proprietary rights, the court determined that there is no established customary international law rule that allows private parties to obtain proprietary interests in land. Additionally, there is no customary international law rule obligating States to recognise and give legal effect to private property rights. Therefore, the applicant could not establish proprietary rights over the Islands under international law. Consequently, the court held that the claim should be dismissed.

The court's final orders were that the questions reserved for consideration in the special case be answered as outlined in the judgment, and that if the parties could not agree on the appropriate order regarding costs, each party was to provide short written submissions, not exceeding three pages, in support of the order sought.