The Discovery Doctrine in International Law, with Respect to the Islands of La Encarnacion and San Juan Bautista – Article by Stan Vaughan
Editor’s Note: In accord with Article III, Section XXII of the U.S. Transhumanist Party Constitution, which states that “The United States Transhumanist Party supports efforts at political, economic, and cultural experimentation in the form of seasteads and micronations”, the U.S. Transhumanist Party has published this guest article by Stan Vaughan, explaining the historical basis in international law for the claims by the Kingdom of Ourania on the uninhabited Pacific Islands of La Encarnacion and San Juan Bautista. Find out more about the Kingdom of Ourania here and read here about the State Visit made by King Immanuel X of Ourania to the Republic of Molossia on June 17, 2017. The arguments made herein by Mr. Vaughan are his own analysis, and members of the U.S. Transhumanist Party are encouraged to study it, review the relevant history, and form their own views and perspectives on it. The United States Transhumanist Party does, however, wish Mr. Vaughan the best in forwarding the recognition and development of the Kingdom of Ourania, which may, if successful, lead to innovations in seasteading and construction of floating cities. We anticipate publishing future updates regarding the Kingdom of Ourania as they become available.
~ Gennady Stolyarov II, Chairman, United States Transhumanist Party, July 2, 2017
Flag of the Kingdom of Ourania
Public international law seems to recognize five ways to acquire insular areas. These are 1) cession, 2) occupation, 3) accretion, 4) subjugation, and 5) prescription. [Raphael Perl, The Falkland Islands Dispute in International Law and Politics: A Documentary Sourcebook (New York: Oceana Publications, Inc., 1983) (hereinafter cited as Perl) 12-13.]
This essay discusses how international law applies to the islands of La Encarnacion (a.k.a. Ducie) and San Juan Bautista (a.k.a. Henderson) in the South Pacific Ocean.
The island of La Encarnacion (a.k.a. Ducie) was discovered by a Spanish expedition led by Portuguese sailor Pedro Fernandes de Queirós on 26 January 1606, during an expedition that began in Callao, Peru. Supported by Pope Clement VIII and Philip III of Spain, Queirós was given the command of the San Pedro, San Pablo, and Zabra. The fleet was nicknamed Los Tres Reyes Magos (“The Three Wise Men”). La Encarnacion (a.k.a. Ducie Island) was the first of eighteen discoveries on the trip. Queirós temporarily named it Luna Puesta, then finally settled on La Encarnacion.
The island was rediscovered by Edward Edwards, captain of HMS Pandora, who was sent in 1790 to capture the mutineers of HMS Bounty. He re-named the island Ducie in honour of Francis Reynolds-Moreton, 3rd Baron Ducie.
On March 10, 1867 it was claimed by US Captain John Daggett of Massachusetts for the United States under the Guano Islands Act (enacted August 18, 1856).
The State Department (William Seward, Secretary of State) considered later in 1867 that the claim would remain dormant or only in abeyance until such time as US citizenship of Captain Daggett was proved, which was done, reviving the dormant US claim.
San Juan Bautista
Pedro Fernandes de Queirós, leading the same Spanish expedition that discovered La Encarnacion, was also the first European to discover another uninhabited island on 29 January 1606. De Queirós named this island San Juan Bautista.
Captain Henderson of the British East India Company ship Hercules re-discovered the island on 17 January 1819 and re-named it Henderson Island.
Claim by the United Kingdom and the Implications of the Discovery Doctrine
In 1877, the islands were purportedly included under the protection of the United Kingdom by an Order in Council that claimed jurisdiction over all previously unclaimed Pacific Islands.
However, La Encarnacion and San Juan Bautista were not unclaimed islands, both having been claimed by Spain in 1606. Such claims were recognized via the Treaty of Utrecht (1713), Treaty of Paris (1763), Nootka Convention (1790), Treaty of Madrid (1814), and the First Hague Convention (1899).
The Discovery Doctrine is a concept of public international law expounded by the United States Supreme Court in a series of decisions, most notably Johnson v. M’Intosh in 1823. Chief Justice John Marshall justified the way in which colonial powers laid claim to lands. Here we will not dispute the controversial aspects of the doctrine concerning inhabited lands, but focus on the uncontroversial aspects of terra nullis (discovery of uninhabited land).
Marshall found that ownership of land comes into existence by virtue of discovery of that land, a rule that had been observed by all European countries.
At the time of the 1776 Declaration of Independence, discovery of terra nullis gave the discovering sovereign absolute title to the newly discovered land. This was amended in 1790 by the United Kingdom / Spain Nootka Convention, which said that, thereafter, newly discovered lands must also be occupied as well. However this treaty did not in any way affect previous discoveries and claims.
Sovereignty could effect cession in a treaty between ceding and acquiring sovereigns, and at no time in history has Spain ever ceded its sovereignty over La Encarnacion and San Juan Bautista to the United Kingdom, which specifically acknowledged Spanish sovereignty to these two islands in both 1744 and 1787, as will be discussed herein later.
Thus, prior to either the purported Edwards 1791 “rediscovery” or the 1819 Henderson “rediscovery”, both islands had been shown on the 1787 King of England Samuel Dunn/Thomas Kitchen map (shown below) as the Spanish possessions La Encarnacion and San Juan Bautista, both previously recognized by the discovery doctrine in international law as belonging to Spain. Thus the 1877 British Order of Council extending British purported sovereignty over all unclaimed islands has no basis in international law, which also says that the purported 1902 “annexations” of these islands are illegal under de jure international laws.
Spain, the United Kingdom, as well as the United States all are parties to the 1899 First Hague Convention, which prohibits and considers such annexations as unlawful.
Further, all three recognize the aforementioned discovery doctrine, George II having recognized in 1744 the islands as having been discovered by Spain, and George III in 1787 having recognized such discoveries by Spain under the names La Encarnacion and San Juan Bautista.
Thomas Kitchin (or Thomas Kitchen (1718–1784)) was an English engraver and cartographer, who became hydrographer to the king. The 1787 Samuel Dunn “A General Map of the World” shows La Encarnacion and San Juan Bautista, as does the 1744 map by Emmanuel Bowen (cartographer to UK King George II and father-in-law to Thomas Kitchin, his apprentice) at correct latitudes south of Tropic of Capricorn and correct longitudes.
Above, the 1744 King George II map of the world with the islands of La Encarnacion and San Juan Bautista at correct latitude south of Tropic of Capricorn and at correct longitude as well, and among those marked as “islands discovered by de Quiros of Spain”.
Above the 1787 King George III map of the world lists La Encarnacion and San Juan Bautista by their actual Spanish names, an acknowledgement of their absolute title by Spain 4 years before the so-called re-discovery of La Encarnacion as Ducie 1791 or the 1819 re-discovery as Henderson instead of San Juan Bautista.
In correspondence from the British Foreign and Commonwealth Office dated 29 March 2017 and postmarked 13 April 2017, the United Kingdom does not dispute the above facts.
Thus, there is no such island as “Ducie” island – only the previously claimed by Spain La Encarnacion Island. There is no such island as “Henderson” island, only the previously claimed by Spain San Juan Bautista Island.
Before the 18th century, discovery alone was sufficient to acquire absolute title to a terra nullis (A. Keller, O. Lissitzyn, & F. Mann, Creation of Rights of Sovereignty 1400-1801 (1938)).
See also William E. Hall, “Discovery gave not merely inchoate title but an absolute title” (International Law 126-127, 214-215, 8th edition, 1924).
International Law Regarding So-Called Annexations
Direct Annexation, by the end of the Napoleonic period, ceased to be recognized in international law as an accepted means of territorial acquisition. Thus, as in the case of La Encarnacion and San Juan Bautista Islands in the South Pacific, the purported annexations (and renaming of the islands), which the United Kingdom proclaimed in 1902, not only violated this principle, but was further illegal by the First Hague Convention of 1899, which had been signed 29 July1900 already by the UK, USA, and Spain. The UK had not acquired these islands by any treaty or cession from Spain, and as earlier pointed out, had already under King George II and King George III by their names and locations recognized their discovery by Spain and thus absolute title from 1606.
In 1948, Emilio Pastor Santos, a researcher of the Spanish National Research Council, claimed there was a historical basis that many islands in the Pacific, formerly parts of either the Viceroyalty of New Spain, or the Viceroyalty of Peru, actually still belonged to Spain and “continue legally under Spanish sovereignty.” These include “a number of small islands in Micronesia (Kapingamarangi or Coroa, Mapia or Güedes, Ocea or Matador, and Rongerik or Pescadores). […]This is because the text of the German–Spanish Treaty of 1899 which transferred sovereignty of certain Spanish possessions in the Pacific to Germany, namely the Northern Mariana Islands (except Guam) and the Caroline Islands (including Palau), failed to include these smaller islands.” (Wikipedia, “Mapia Atoll”)
On 12 January 1949, after presentation of the research to the Council of Ministers of Spain, the Spanish Foreign Minster declared this as de jure, and the Cabinet of Diplomatic Information of the Ministry of Foreign Affairs declared as follows: “The Ministry recognizes that it is a certain fact and historic truth that Spain reserves a series of rights certain groups of islands as not having been ceded by Spain.”
This situation resulted in the Kingdom of Ourania contacting Spain and acquiring a number of islands formerly either part of the Viceroyalty of New Spain or the Viceroyalty of Peru, but with the proviso they can never be re-assigned to the United Kingdom at any time in the future, unless the UK first returns Gibraltar and restores the territorial integrity of Spain concerning Gibraltar.
Stan Vaughan is a chess champion who resides in Southern Nevada. He ran for State Assembly District 15 as a Republican in 2016. He now represents the Kingdom of Ourania in its efforts to attain international recognition and form a floating city in the vicinity of the claimed islands of San Juan Bautista and La Encarnacion.