Flags

'Flag within a Flag: Understanding the Ongoing Cultural Significance of the Union Jack in the Australian Flag' by Tracey Mee in (2024) 48(3) Journal of Australian Studies 365-379 comments 

In Australia, social scientists have long understood the importance of national symbols and the role they play in both the construction and maintenance of the nation, but in-depth analysis of the national flag has been overlooked. In particular, the cultural significance of the British flag that sits within the Australian national flag warrants focused consideration, as it symbolises the moment Australia became a British possession in multifarious ways. In this article, a critical analysis of the Australian flag demonstrates how the primary symbol of the nation can heighten White privilege through its official point of honour. Vexillology and Indigenist Standpoint Pedagogy provide a framework from which to deconstruct the Australian flag. This article conducts a critical examination of the social, institutional and historical frameworks that support the flag to argue that it is an ongoing signifier of White cultural power. ... 

The Australian national flag is a symbol that communicates both explicit and implicit messages to its citizens as a collective and as individuals. This article draws from and furthers my PhD research, which critically examines the Australian nation through an investigation of the national flag.Footnote1 Analysis of the flag’s history and its applications across a range of sites reveals the cultural significance of the Australian flag, which carries the British flag as its official point of honour. My research demonstrates that discussions about the Australian national flag remain framed by Anglocentric history, sentiment and traditions. Furthermore, I argue that when non-Indigenous Australians engage in debate about the national flag, they routinely fail to foreground or incorporate Indigenous Australian perspectives.Footnote2 What is missing from these discussions is critical analysis of the flag and its capacity to operate as a symbol of White cultural power that is reinforced by the enduring authority of the Union Jack. The task at hand, therefore, is to reveal the pedagogical influence of the flag. This article begins with a background discussion that engages with various symbols of Australian national identity and highlights some of the rhetorical strategies deployed in their defence. Following this, I turn my attention to the historical development of Australia’s national flag before investigating various dynamics encoded in a national flag. Finally, I use the principles of meta-vexillological reflection alongside Indigenist Standpoint Pedagogy (ISP) to examine how the historical, institutional and social structures of Australian society work together to reinforce the legitimacy of the flag and the messages that it transmits.

Sovereignty Signifiers

'Symbolic Decolonization and Postal Politics: Sovereignty, Secession and the Stamps of Pseudo-States in Sub-Saharan Africa, c.1960-1979' by Gary Baines in (2024) 2(26) Monde(s) 113-134 comments 

Since its inception, the Universal Postal Union (UPU) has designated its members as “countries” and “territories”. Historically, stamp-issuing members have included non-self-governing entities such as colonies, protectorates, and mandates that were controlled by an imperial or metropolitan power [1]. Following decolonization, the UPU’s membership swelled with the admission of a slew of newly independent nation states. Yet, contrary to the conventions of international relations in the post-colonial world, the UPU has avoided describing its members as “states”. This is arguably a manoeuvre designed to allow the agency to sidestep politically sensitive disputes regarding sovereignty. Taking its cue from United Nations (UN), the UPU has seldom admitted secessionist or self-proclaimed independent states as members. But such states have issued stamps in order to assert their sovereignty so as to further their claims to international recognition in the comity of nations. However, stamps are only fully invested with sovereign power if they are accepted as valid receipts for prepayment for postage on a reciprocal basis with other states [2]. In the case of secessionist or unilaterally independent states in 1960s Sub-Saharan Africa, the UPU refused to recognize their stamps and subjected their mail to sanctions. These measures challenged their sovereign claims. 

Sovereignty is a discursive claim rather than a factual description of realities on the ground [3]. As such, it is contested and contingent [4]. The struggle for sovereignty occurs not only in the political sphere but also in the realm of symbolism. The creation and adoption of new national symbols such as flags and anthems were a critical part of the decolonizing process in former sub-Saharan African colonies which had previously been denied sovereignty. Kenrick refers to efforts to establish the trappings of new sovereign states as symbolic decolonization [5]. His study of the repertoire of symbols created by Rhodesia after its Unilateral Declaration of Independence (UDI) is instructive but makes no reference to stamps. However, Brownell has authored an excellent essay on how the visual rhetoric of Rhodesian stamps projected the white settler state’s claims to sovereignty [6]. Hammet explains how South Africa’s “Bantustans” with their “constrained sovereignty” used stamps to express their nationhood via the tropes of territoriality, identity, and political authority [7]. And Inyang shows that Biafra employed similar signifiers on its stamps to invoke the promise of sovereignty [8]. This paper will suggest that stamps issued by Katanga, Biafra, and Rhodesia to commemorate independence signalled to the world that they had achieved statehood. However, the sovereign claims of the three would-be states were rejected on the grounds that they were not entitled to exercise authority within their territories nor act independently of outside authorities. 

While diplomatic recognition is the prerogative of individual states, collective non-recognition went a long way in determining whether states were accepted in the family of nations. Katanga, Biafra, and Rhodesia were never accorded recognition by the international community. They were not admitted as members of the UN and consequently enjoyed no standing in the UPU. Exclusion of these pseudo-states from the UPU meant disputes over matters such as the franking of stamps and the delivery of mail, and the disruption of international postal services. Much against its better judgment, the UPU’s Directorate became party to the politicization of these services. This much was apparent from the imposition of postal sanctions designed to prevent the reciprocal exchange of mail with these pseudo-states. This paper demonstrates that the contestation over the validity of the pseudo-states’ stamps and the distribution of their mail was part and parcel of their struggle for sovereignty.

'The Shibboleth of Sovereignty' by Martin Loughlin and Stephen Tierney in (2018) Modern Law Review comments 

The legal doctrine of parliamentary sovereignty is such a fundamental tenet of constitutional belief that we commonly assume it to be of ancient provenance. In reality, it is a late-nineteenth century creation. Its author, the Victorian jurist Albert Venn Dicey, presented it as the central element of a work that sought to shift the basis of British constitutional thought. Noting that hitherto the constitution had been treated as a historical phenomenon, he argued that constitutional scholars, having been seduced by speculative ideas, had been drawn into a ‘maze in which the wanderer is perplexed by unreality …, by antiquarianism, and by conventionalism’.  Criticizing those who regarded the constitution as an object of veneration, he maintained that the scholar’s duty must not be to eulogise but merely to analyse and expound. 

Dicey argued that a scientific explanation could be advanced only by establishing a new and autonomous field, that of ‘the law of the constitution’. Noting that Blackstone in his influential Commentaries on the Laws of England of 1765 nowhere uses the term ‘constitutional law’, Dicey claimed to have discovered a new branch of legal knowledge. Deploying a legal positivist method, he defined this new subject as one concerned to analyse ‘all rules which directly or indirectly affect the distribution or the exercise of the sovereign power in the state’. Having re-orientated the object of study towards the rule order of the British state, Dicey confidently asserted that the basic rule of the constitution is expressed in ‘the doctrine of parliamentary sovereignty’. This is the rule that the Crown-in-Parliament ‘has, under the English constitution, the right to make or unmake any law whatsoever; and, further, that no person or body is recognised ... as having the right to override or set aside the legislation of Parliament’. This foundational doctrine was presented as an objective and technical rule about the relative authority of sources of law. 

Dicey’s great achievement is to have been the first to apply a rigorous juristic method to the study of the British constitution. This provided subsequent generations of lawyers with a clear and relatively simple framework of analysis. But that is not all: his discovery of the ‘law of the constitution’ also caused subsequent generations of lawyers, despite continuing to pay lip service to the evolutionary character of the British constitution, to regard the underlying basic law as of timeless authority. Notwithstanding developments since the late-nineteenth century which have transformed the character of modern government, lawyers continued to uphold his account of the basic rule. 

Continuing adherence to Dicey’s account, we argue, is now creating a ‘hopeless confusion both of language and of thought’ which flows from a failure to distinguish between the particularity of Dicey’s legal doctrine and the general concept of sovereignty. And the failure to recognise that his legal doctrine is inextricably tied to a particular political belief about authority is causing constitutional lawyers to become ‘perplexed by unreality’. 

We aim to substantiate these claims by differentiating Dicey’s legal doctrine from the general concept of sovereignty (sections III and IV) and then examining the contemporary consequences of this conflation (section V). But the political basis of the legal doctrine must first be explained (section II). Our key point is that no sooner had Dicey finished criticizing those who eulogise rather than analyse than he revealed that his fundamental legal doctrine rested its authority on a particular political belief, one which he treated as an article of faith. He hinted at this when noting that ‘the omnipotence or undisputed supremacy throughout the whole country of the central government’ is a feature that has ‘at all times since the Norman Conquest characterised the political institutions of England’. But it came more clearly into view when, within a year of publishing The Law of the Constitution, he published the first of his three books opposing home rule in Ireland. In this work Dicey invoked sovereignty not as a legal doctrine but explicitly as a political precept. Here he argued that home rule, which evidently does not undermine the legal doctrine of parliamentary sovereignty, is nevertheless ‘a plan for revolutionising the constitution of the United Kingdom’. This type of claim can only stem from a political belief of the necessity of maintaining untrammelled authority at the centre. ‘Each successive generation from the reign of Edward I onwards’, he later explained, ‘has laboured to produce that complete political unity which is represented by the absolute sovereignty of the Parliament now sitting at Westminster’. This ‘political unity’ expresses what he called the ‘instinctive policy of English constitutionalists’. Sovereignty is here not being expressed as a formal doctrine; it is a political conviction about the need for an unrestricted central power. 

Notwithstanding his claim to be dispassionately presenting the law of the constitution, Dicey was making a politico-legal argument about sovereignty. His formal legal doctrine is inextricably tied to a substantive political conviction. And it is this politico-legal conception, we argue, that rapidly acquires the status of an article of faith among the British governing class. In blending the political and legal aspects of sovereignty in such an inchoate manner, Dicey presented as ‘the very key-stone of the law of the constitution’ a thoroughly ambiguous conception of sovereignty. Subsequent changes in the conditions of governing might cause us to question those political assumptions and in turn to qualify the meaning and status of the legal doctrine. But this has not happened; Dicey’s unacknowledged and highly particular conception of sovereignty is now preventing the British from thinking creatively about constitutional matters.

SIDS

'Three Reconstructions of ‘Effectiveness’: Some Implications for State Continuity and Sea-level Rise' by Alex Green in (2024) 44(2) Oxford Journal of Legal Studies 201–230 comments 

The existence of states under international law turns on a range of connected factors, including a strong presumption in favour of continuity once legal statehood is established. When it comes to state creation, relevant factors include the presence of foreign recognition, the delimiting influence of treaties making territorial concessions, the express or implied consent of any ‘parent’ states, demonstrable commitments to democratic principles and human rights norms, and the provision of suitably constituted independence referendums at the point of emergence. It is arguable that some of these factors, particularly that of foreign recognition, also govern the existence of states beyond the point of their creation. 

Whatever the case, one concept almost always discussed whenever statehood is in question is that of ‘effectiveness’. Traditionally conceived, effectiveness concerns whether a given physical space and human population are subject to factual control by the governance institutions that partly constitute the state in question. It is often considered necessary for the creation of states, in addition to being an independent basis upon which territorial title can be grounded. This article partly concerns the nature of effectiveness in general. However, my primary focus is upon the role that it plays within the law of state continuity, which governs the conditions under which states persist through time. The antithesis of continuity is extinction, which usually occurs due to some disruptive event, such as destruction by a foreign power or voluntary dissolution. States are continuous to the extent that their existence under international law is not disrupted by events of this kind. State continuity is sometimes linked with the neighbouring question of state identity, which concerns whether (and why) a state at time T1 is the same entity as the one identified with it at time T2. These topics can nonetheless be treated separately, which is what I propose to do here. 

My analysis of effectiveness is partly theoretical, turning upon three distinct accounts of that concept and what each has to say about state continuity. However, my motivation is practical, stemming from the existential threats currently faced by Small Island Developing States (SIDS) in light of human-caused sea-level rise. I aim to show that even though the three ‘reconstructions’ of effectiveness I advance have different normative foundations, each one supports the existential resilience of SIDS notwithstanding the danger of sea-level rise. That danger might be crudely described as ‘loss of effectiveness’. Under austere accounts of the effectiveness principle, no entity without inhabitable land and a permanent population living upon that land can maintain statehood, particularly not if the loss of these factual prerequisites is permanent. I elaborate upon this ‘austere view’ below, arguing that each reconstruction of effectiveness I examine requires it to be rejected. 

All three accounts of effectiveness I advance are derived via the ‘rational reconstruction’ of international law. This hermeneutic method, sometimes called ‘creative’ or ‘constructive’ interpretation, seeks to induce from the social facts of international legal practice the set(s) of general evaluative commitments underpinning that practice. ‘Practice’, in the relevant sense, encompasses not only the state practice and opinio juris necessary for the formation of customary international law, but also the text and context of relevant treaties, the judgments of international courts and tribunals, and other international legal instruments with probative value on de lege lata. What distinguishes rational reconstruction from purely doctrinal legal interpretation is that it also relies upon ‘critically normative’ or ‘moral’ considerations to explicate the justificatory basis of the legal positions being examined. It takes social practices like international law seriously as sources of genuine practical reasons, and elucidates those reasons to yield prescriptive implications specific to these practices. Rational reconstruction, to that extent, exemplifies the ‘Grotian tradition’ of international law, as articulated by those such as Lauterpacht, and can be understood largely in those terms. The value of examining effectiveness in this way lies not only in the radical potential of rational reconstruction to generate progressive legal arguments, but also in its capacity to draw out the most foundational commitments of the international legal order. By asking why effectiveness matters in normative terms, we get a clearer picture of how it should be understood and applied in response to unprecedented legal challenges such as those of sea-level rise and the global climate crisis. 

To provide context, section 2 introduces the most commonly accepted elements of effectiveness and connects them to other aspects of the law governing state continuity. After this, three discrete reconstructions of effectiveness are advanced, each corresponding to a different conception of why effectiveness matters normatively. The first emphasises the value of stability within international relations (‘effectiveness as stability’, section 3). The second focuses upon the function of governments as fiduciaries for their people, emphasising the connection between effectiveness and the protection of human rights (‘the fiduciary model’, section 4). The third stresses the importance of states as the primary communities within which intrinsically valuable political action occurs (‘statehood as political community’, section 5). Sections 3–5 are each divided into two halves: a normative reconstruction of effectiveness, followed by an application of that analysis to state continuity and sea-level rise. I conclude by reviewing the contribution of all three reconstructions. To the extent that each has featured within legal scholarship before, all three are typically presented as incompatible competing reconstructions.27 I engage with them here on a different basis: as distinct but compatible conceptions of effectiveness, each of which reinforces the existential resilience of SIDS under contemporary international law.

Separatism

In Westpac Banking Corporation v Summerscales (No 2) [2023] NFSC 5 Besanko CJ has considered a claim, as part of a property dispute, that Norfolk Island is outside Australian law. 

Under the heading 'Mr Summerscales’ Response to Westpac’s Claim' the Court states 

 Mr Summerscales has filed two Defences in the course of this proceeding. 

His first Defence was filed on 31 August 2023. In that Defence, he did not raise any matter which specifically related to the loan agreement or the mortgage or Mr Summerscales’ alleged default under the provisions in either of those documents. He purports, however, to challenge the jurisdiction of the Supreme Court of Norfolk Island. He refers to various pieces of legislation and he asserts that certain legislation was “unlawful and illegal and void, ab initio and as to the constitution and/or composition of the so-called said Supreme Court of Norfolk Island …”. He also asserts that any judicial officer or registrar sitting in the Supreme Court of Norfolk Island was doing so as a “persona designate” and had no lawful capacity or jurisdiction to do so. He further asserts that Westpac was trading unlawfully, illegally and in direct violation of the laws of “Norf’k Ailen” or Norfolk Island people in every manner whatsoever. He challenges Westpac’s standing to bring this proceeding. In his Amended Defence filed on 12 September 2023, Mr Summerscales reiterates these “pleas” and adds the following “plea”:

4. and in that at the outset, the standing of the Applicant Plaintiff to bring this action whatsoever, is challanged [sic] in that pursuant to the Territories Legislation Amendment Act, 2016 (Cth) [Act No 26 of 2016] [Assented to on 23 March 2016], the amendments to the ACTS INTERPRETATION ACT 1901 (Cth) “Norfolk Island” was only included into the definition of “Australia” within the meaning of the Commonwealth of Australia, on or after 24th March 2016, were unlawful and illegal AND as such and banking arrangements between the Applicant/Plaintiff and the Respondent/Defendant which were concluded before the abovementioned date dictates that any such arrangement breaches any contractual arrangement between the parties, rendering the arrangement void and/or voidable ab initio. and as such, also breaching the Banking Act, 1959 (Cth). 

On 27 July 2023, Mr Summerscales filed an Interlocutory process and affidavit. In the former document, Mr Summerscales made a request for a number of “orders”, including the following order:

An order that the plaintiff provide sufficient evidence that this Court, sitting as the Supreme Court of Norfolk Island is a competent court of record and is legally and lawfully constituted, to be able to hand down confident judgment and has the requisite jurisdiction to bind this “court” and the parties to this action. 

In the affidavit, Mr Summerscales alleged that “the only lawful and legal government on Norfolk Island is that law introduced to Norfolk Island by the Pitcairn Settlers” and that the descendants of the Pitcairn Settlers still survive and include Mr Summerscales. As I understand it, Mr Summerscales asserts that neither Westpac nor the Commonwealth of Australia nor the State of New South Wales has any jurisdiction over Mr Summerscales or the Pitcairn people (“me or my people”). 

This Interlocutory process was dismissed at the hearing on 10 August 2023 which is described below. 

On 7 August 2023, Mr Summerscales purported to file an Amended Interlocutory process and affidavit. The main thrust of this seemed to be that Mr Summerscales will be seeking an order that Westpac pay a sum of “five (5) times the sum of this action, to be paid into Court as a ‘Peregrini Payments into Court’”. This Interlocutory process was also dismissed on 10 August 2023. 

On 9 August 2023, two documents were filed. One document was an “Application for leave to intervene” filed by a person purporting to be the Attorney-General of the Norf’k Ailen Government. The document purported to be an Application to intervene and for orders that the current proceedings be dismissed for want of jurisdiction of the Court. The affidavit was filed by a person claiming to be “‘RO’ of the clan ‘i.am.ro’” and claiming to be the current Attorney-General of Norf’k Ailen Government. The person apparently swearing the affidavit said that he was appointed to his current position by the Norf’k Ailen Chief Magistrate. He deposes that he did not appoint or establish any Supreme Court on the “terra-firma” known as Norf’k Ailen since his tenure. He states that since his appointment, no Court known or addressed as the Supreme Court was in existence. He states that he did not appoint any Chief Justice and he states that no such office existed upon his appointment. He states that any seals applied to the documents are not seals approved or authorised by the Norf’k Ailen Government. As to the Court, he states that it is “not a Court that has any jurisdiction upon the Constitution and Laws of the Norf’k Ailen Government, either now or historically from before these people arrived on Norf’k Ailen from Pitcairn Island on 8th June 1856”. The Application for leave to intervene was dismissed on 10 August 2023. ... 

At the first case management hearing, Mr Summerscales asserted that the Court did not represent the people of Norfolk Island “people like myself”. He said that the Court that I was sitting in and the documents produced appeared to be foreign to the people of Norfolk Island. He asserted that he needed to be satisfied that the Court had jurisdiction in Norfolk Island. I made an order that Mr Summerscales file a Defence by 27 July 2023 and adjourned the matter for a further case management hearing on 10 August 2023. 

I conducted a second case management hearing on 10 August 2023. At that time, Mr Summerscales had not filed a Defence. He said that that was because the Court had not actually established its jurisdiction and that it was not possible to go forward until the jurisdiction of the Court was established. I referred Mr Summerscales to the conferral of jurisdiction by s 5 of the Supreme Court Act of Norfolk Island and asked Mr Summerscales to identify a basis upon which I could go behind that conferral of jurisdiction. Mr Summerscales asked whether “my Attorney general” was in the Court in Adelaide. Mr Summerscales asked whether it was possible for “my Attorney general to speak for me”. I told him that that was not possible. I again asked Mr Summerscales to identify the basis upon which I could go behind the conferral of jurisdiction by s 5 of the Supreme Court Act of Norfolk Island. Mr Summerscales then asserted that the Court was an unlawful court. As to the Supreme Court Act of Norfolk Island, he said the following:

… those are all Acts that – pushed on us by Australia, not Acts made by people of Norfolk Island or our Norfolk Island government.

 At or about this point, an adult female in the courtroom in Norfolk Island interrupted the proceeding and asserted that she was the Chief Magistrate “as appointed by the people of Norfolk Island to act under the Pitcairn Constitution that was brought here and instigated in 1856”. There was then an exchange between this person and myself which is recorded in the transcript. The female adult asserting to be the Chief Magistrate then said the following referring to a person she described as “our Attorney general”:

He has on file documents appointing an Attorney general under the Pitcairn Constitution, and he showing bias to the Australian judicial system by not even imploring our request to have our Attorney general in court. So you need to explain why we do not have representation in your court. 

Mr Summerscales then asserted that Norfolk Island did not belong to Australia. It was not in my jurisdiction and not in my Constitution. He asserted that I was acting outside of my Constitution and violating “our constitution and our court”. At that point, I asked Mr Summerscales whether he wanted an opportunity to put in writing why I should go behind the conferral of jurisdiction in s 5 of the Supreme Court Act of Norfolk Island. At that point, the adult female said that the Court is a defunct court and a court not erected by the Norfolk Island government and the people of Norfolk Island. ... 

What Mr Summerscales did do between 13 September 2023 and 21 November 2023, or claimed that he did, was the following: (1) It seems that on or about 14 November 2023, Mr Summerscales sought to file an Interlocutory process and affidavit. The Registrar of the Court refused to accept the documents (r 6142). The documents were returned to Mr Summerscales as required by the Rules (r 6143). As it happened, copies of the documents were later sent to the Registry of the Court on Norfolk Island with “no apparent sender” via Officeworks which is not located on Norfolk Island. In light of Mr Summerscales’ status as a self-represented litigant and the significance of the order being sought by Westpac, I considered the matters raised in the documents in case they raised something new that might be relevant to whether or not summary judgment ought to be granted. They do not. The focus of a foreshadowed defence is the jurisdiction of the Court and whether, to use Mr Summerscales words, “the sitting of this Court is under a foreign jurisdiction, namely under Australian laws”. The alternative or perhaps additional defence (which of these it is not clear to me) was that my appointment as Chief Justice was and is invalid because it was made before “Norf’k Ailen” became part of Australia on 24 March 2016. Mr Summerscales also asserted that the Australian Government “are still attempting to mask their unlawful behaviour to try to usurp control over Norf’k Ailen (also known as Norfolk Island)”. Finally, Mr Summerscales asserted that Westpac “acted unlawfully in its dealings with the banking transactions related to the core matters of the merits of this Claim”. No particulars whatsoever of this serious allegation of unlawful conduct are provided. Mr Summerscales has had ample opportunity to provide any relevant particulars of any alleged unlawful conduct by Westpac. Had I thought that there was anything in these documents, I might have given Mr Summerscales an opportunity to file a further affidavit, but there is nothing. In his affidavit, Mr Summerscales said that he attended the Court on 14 November 2023 and that he was then told that the matter had been stood over to 21 November 2023. ... 

Mr Summerscales asserts that he had not been consulted as to his availability for another date for hearing and, in particular, 28 November 2023. He refers to the fact that he attended the courthouse on 14 November 2023 and that it was closed. He states that he then went to the Registrar’s office and was advised that the hearing had been postponed. He had not been advised that the hearing would not be held on 14 November 2023. He states that “for personal medical reasons” he would not be able to attend a hearing on 28 November 2023 and now did not have a confirmed date as to when that may even be considered. He asserts that since his first appearance in the matter, all of his documents have been ignored or dismissed. He asserts that I have failed in various duties. He states that since the first hearing in the matter, he has continued to ask for evidence that the Court is a lawful and legal court of “Norf’k Ailen (also known as Norfolk Island)”. He states that he considers that he is entitled to question the jurisdiction of the Court and that the Court must address the jurisdictional question. He states that the Australian Government Hansard shows that Norfolk Island has never been part of the State of New South Wales since Federation. He also refers to publicly available Australian Government official documents after 2014. He states that they show that Norfolk Island has never been part of the State of New South Wales and is not part of, owned by, or annexed to the Commonwealth of Australia. He asserts that the Australian Government has no authority in law to be administering Norfolk Island. He refers to the Acts Interpretation Act. He refers to the fact that the Local Government Act 1993 (NSW) does not include Norfolk Island. He refers to the fact that further inquiries have revealed that these proceedings and the claim itself, especially “with respect to Corporation only registered a ‘mortgage encumbrance’ on my property (to which this matter refers) on 29th August 2022”. He asserts (as he has in the past) that “on the merits of the claim itself in this matter” he will file pleadings which demonstrate that Westpac has acted unlawfully in its dealings with the banking transactions relating to the core matters of the merits of this claim. He also asks that Westpac provide written evidence to him and the court that the court sitting as the Supreme Court of Norf’k Ailen is a competent court of record and is legally and lawfully constituted to be able to hand down competent judgments and that the so-called court has the requisite jurisdiction to bind the parties to this action. Finally, he states that he considers that I have shown bias and that that is evident from the communication prior to the hearing on 21 November 2023 and to the email sent to his McKenzie friend dated 21 November 2023. He asserts that the content of that email, which is set out below, sent to his McKenzie friend denied him his human rights to be heard at the hearing by AVL. He concludes his letter by referring to the two affidavits relating to the hearing on 21 November 2023. He also asserts that the Court should take into account Magna Carta. He asserts that the judge and the Court have erred in relation to this matter and that the judge’s statements and orders are void and this whole matter, the judge, the courts are “Coram non judice and nullity”. 

The letter from the person purporting to be the Chief Magistrate of Norf’k Ailen Government is dated 28 November 2023. The person, whose name does not appear, referred to her appearance on 10 August 2023 when she presented herself as the Chief Magistrate of Norf’k Ailen. The letter refers to the Supreme Court of Norfolk Supreme as “defunct”. The author of the letter states that she has received a complaint from Mr Summerscales. She states that neither she nor her Attorney General has appointed me to office. She states the following:

Let me remind you, the power, and laws of the Constitution of Pitcairn Island, dated 1838 and those laws and Constitution which the Pitcairn Settlers brought to Norf’k Ailen (also known as Norfolk Island), and along with the Great Seal issued to the Norf’k Ailenders in 1856, and the Pacific Islanders Protection Act 1875, to name a few, are still very much the authority here on this ailen. I strongly advise yourself, and any other person who has not been appointed by myself as Chief Magistrate of Norf’k Ailen (also known as Norfolk Island), or my Attorney General, to cease your actions effective immediately, or you may find yourself and others liable for prosecution for usurping the laws and governance of Norf’k Ailen (also known as Norfolk Island).

The letter states that copies had been sent to the Governor General of the Commonwealth of Australia, the Attorney-General of the Commonwealth of Australia, the Chief Justice of the Federal Court of Australia, Westpac and the Registrar.

Atlantis

'Three Reconstructions of ‘Effectiveness’: Some Implications for State Continuity and Sea-level Rise' by Alex Green in Oxford Journal of Legal Studies comments 

Small Island Developing States (SIDS) are uniquely threatened by rising sea levels. Not only does the retreat of their coastlines place them in danger of losing maritime territory; the concurrent possibility of their landmasses becoming either uninhabitable or completely submerged also threatens their very existence. According to one understanding of the law that governs the continuity and extinction of states, political communities that permanently lose ‘effectiveness’—typically understood as sufficient governmental control of a relatively determinate territory with a permanent population—must lose their statehood as well. In this article, I provide three reconstructions of effectiveness, each of which rests upon a different normative rationale. My contention is that, regardless of which reconstruction one adopts, the continuity of submerged SIDS is eminently supportable, notwithstanding the arguments frequently made in favour of their formal extinction. 

 

The existence of states under international law turns on a range of connected factors, including a strong presumption in favour of continuity once legal statehood is established. When it comes to state creation, relevant factors include the presence of foreign recognition, the delimiting influence of treaties making territorial concessions, the express or implied consent of any ‘parent’ states, demonstrable commitments to democratic principles and human rights norms, and the provision of suitably constituted independence referendums at the point of emergence. It is arguable that some of these factors, particularly that of foreign recognition, also govern the existence of states beyond the point of their creation. 

 

Whatever the case, one concept almost always discussed whenever statehood is in question is that of ‘effectiveness’. Traditionally conceived, effectiveness concerns whether a given physical space and human population are subject to factual control by the governance institutions that partly constitute the state in question. It is often considered necessary for the creation of states, in addition to being an independent basis upon which territorial title can be grounded. This article partly concerns the nature of effectiveness in general. However, my primary focus is upon the role that it plays within the law of state continuity, which governs the conditions under which states persist through time. The antithesis of continuity is extinction, which usually occurs due to some disruptive event, such as destruction by a foreign power or voluntary dissolution. States are continuous to the extent that their existence under international law is not disrupted by events of this kind. State continuity is sometimes linked with the neighbouring question of state identity, which concerns whether (and why) a state at time T1 is the same entity as the one identified with it at time T2. These topics can nonetheless be treated separately, which is what I propose to do here. 

 

My analysis of effectiveness is partly theoretical, turning upon three distinct accounts of that concept and what each has to say about state continuity. However, my motivation is practical, stemming from the existential threats currently faced by Small Island Developing States (SIDS) in light of human-caused sea-level rise. I aim to show that even though the three ‘reconstructions’ of effectiveness I advance have different normative foundations, each one supports the existential resilience of SIDS notwithstanding the danger of sea-level rise. That danger might be crudely described as ‘loss of effectiveness’. Under austere accounts of the effectiveness principle, no entity without inhabitable land and a permanent population living upon that land can maintain statehood, particularly not if the loss of these factual prerequisites is permanent. I elaborate upon this ‘austere view’ below, arguing that each reconstruction of effectiveness I examine requires it to be rejected. 

 

All three accounts of effectiveness I advance are derived via the ‘rational reconstruction’ of international law. This hermeneutic method, sometimes called ‘creative’ or ‘constructive’ interpretation, seeks to induce from the social facts of international legal practice the set(s) of general evaluative commitments underpinning that practice. ‘Practice’, in the relevant sense, encompasses not only the state practice and opinio juris necessary for the formation of customary international law, but also the text and context of relevant treaties, the judgments of international courts and tribunals, and other international legal instruments with probative value on de lege lata. What distinguishes rational reconstruction from purely doctrinal legal interpretation is that it also relies upon ‘critically normative’ or ‘moral’ considerations to explicate the justificatory basis of the legal positions being examined. It takes social practices like international law seriously as sources of genuine practical reasons, and elucidates those reasons to yield prescriptive implications specific to these practices. Rational reconstruction, to that extent, exemplifies the ‘Grotian tradition’ of international law, as articulated by those such as Lauterpacht, and can be understood largely in those terms. The value of examining effectiveness in this way lies not only in the radical potential of rational reconstruction to generate progressive legal arguments, but also in its capacity to draw out the most foundational commitments of the international legal order. By asking why effectiveness matters in normative terms, we get a clearer picture of how it should be understood and applied in response to unprecedented legal challenges such as those of sea-level rise and the global climate crisis. 

 

To provide context, section 2 introduces the most commonly accepted elements of effectiveness and connects them to other aspects of the law governing state continuity. After this, three discrete reconstructions of effectiveness are advanced, each corresponding to a different conception of why effectiveness matters normatively. The first emphasises the value of stability within international relations (‘effectiveness as stability’, section 3). The second focuses upon the function of governments as fiduciaries for their people, emphasising the connection between effectiveness and the protection of human rights (‘the fiduciary model’, section 4). The third stresses the importance of states as the primary communities within which intrinsically valuable political action occurs (‘statehood as political community’, section 5). Sections 3–5 are each divided into two halves: a normative reconstruction of effectiveness, followed by an application of that analysis to state continuity and sea-level rise. I conclude by reviewing the contribution of all three reconstructions. To the extent that each has featured within legal scholarship before, all three are typically presented as incompatible competing reconstructions. I engage with them here on a different basis: as distinct but compatible conceptions of effectiveness, each of which reinforces the existential resilience of SIDS under contemporary international law.

Unrecognised States

'From Statehood to Effectiveness: The Law of Unrecognised States in Private International Law' by Daniel Gruenbaum in (20220 86(3) Rabels Zeitschrift für ausländisches und internationales Privatrecht 577-616 comments

One of the functions of private international law (PIL) is to determine the law that governs a legal relationship. Yet what occurs when the rules designated by PIL emanate from an entity that has not been recognised as a state by the government of the forum? This article aims firstly to identify and describe the major prevailing approaches to applying the law of unrecognised states in contemporary PIL practice. It then critically appraises the principal reasons justifying the application of foreign law despite it emanating from unrecognised states. The article finally argues that applying the law of unrecognised states reveals the potential for PIL to grapple with non-state rules and with interactions of normative orders of all different sorts, regardless of their state pedigree.

In 'International Law and Statehood: A Performative View' Janis Grzybowski and Martti Koskenniemi argue 

Twentieth-century international jurisprudence may be summarised as an extensive effort of trying to fit the view that states are sovereign with the view that they are still ‘bound’ by an international law. But the problem has not been limited to jurisprudence. Most international disputes involve one side invoking its sovereign right and the other side referring to some international rule allegedly overriding that right. Even today, international lawyers are both committed to statehood as the foundation of their field – and to the critique of that statehood as obstructive of their international projects on peace and security, human rights, free trade, clean environment, abolishing impunity for serious crimes, protecting investment, etc. Much of this ambivalence has a moral-political quality: is statehood good or is it bad? Are established states the pillars of a peaceful international and domestic order or the fig leaf of random rule by a specific social class or group? And are nationalist demands for new states signs of fragmentation, ‘ethnic’ or otherwise, or are they justified calls for the emancipation of ‘the peoples’? On the one hand, the right of identifiable communities to enjoy self-determination appears as a founding explanation for why there should be anything like international law in the first place. The idea that communities have a right to lead their own lives in accordance with their preferences – their religious or political commitments – and to rule themselves autonomously, with laws they have enacted and through officials of their own choosing, seems quite fundamental. One need not go further than the de-colonisation period to realise the political power of this idea. On the other hand, statehood also provides a protective veil to all kinds of moral and political abomination, shielding corrupt or oppressive governments from outside scrutiny, consolidating and protecting tyrannical regimes. Thus, while for some the state means peace and security from outside aggression and internal turmoil, a ‘home to one’s own people’, others regard it as a barrier to their own political (national or international) aspirations and an instrument of suppression. Hence the interminable recent debates on ‘responsibility to protect’ – that is, the question of the right or duty of the ‘international community’ to intervene in the government of states in internal turmoil. But whether the state is ultimately a promise for the emancipation of the ‘Wretched of the Earth’ (Frantz Fanon) or a means to preserve the status quo against endless ‘fratricidal struggles’ (ICJ Burkina Faso vs. Mali 1986) cannot be decided a priori. The diverging views that are involved in any dispute are accepted or rejected as part of broader – read political – considerations. For example, the question of the statehood of Slovenia, Croatia, and Bosnia and Herzegovina in the 1990s turned on disagreements about how to react to the violent fragmentation of the former Socialist Federal Republic of Yugoslavia (SFRY). The problem resurfaced with the Kosovo question, intensely debated within the advisory proceedings of the International Court of Justice in 2009, with the twist that Kosovo had not been a constituent republic of the SFRY. The recent history of the Balkans shows nicely that whether ‘the state’ is to be defended or challenged is no question answerable in abstracto but depends on context and vantage-point; we could also say that it is political.

Further 

Statehood is not only morally contested and caught in an ambiguous relationship with international law; its very ontology lingers uncomfortably between notions of empirical fact and power, and notions of legal validity and moral purpose. What is statehood? After centuries of debate, intellectuals still disagree about this – is statehood a social fact or a social norm? Nobody has of course ever ‘seen’ states. They are constructions, pieces of human imagination, forms of shorthand by which aspects of experience are rationalised. And yet, of course, this does not signify that they could be simply wiped out of our world without something quite important being lost. As C. A. W. Manning once pointed out, to think of the world without reference to statehood would be like thinking of a fleet at sea only by reference to a lot of sailors acting – without any reference to the performance of ships. But if we cannot understand the world without statehood, what character has it? According to a ‘realist’ tradition, the state is a ‘fact’, the fact of power above all, finding expression in the ability of the ‘Machiavellian’ Prince to seize, retain and extend control over a city, in the ‘Hobbesian’ Sovereign’s ability to pacify his warring subjects, or in the ‘Weberian’ government’s monopoly of legitimate force over a population on a definite territory. To contemplate the ‘deeper’ moral purpose of statehood would only dangerously conceal the reality of power. But then, a whole tradition from Aquinas onwards points out that mere ‘facts’ do not create the moral compulsion we associate with statehood – that instead we understand statehood as a particular kind of ‘authority’ vested in men (indeed, almost always men) by a set of principles through which coercion is translated into legally valid control. Indeed, in this ‘idealist’ tradition it is utterly absurd to claim that the state is real in any factual sense; rather, empirical behaviour, causes and materials take a coherent shape only to the extent to which this shape has a legal or ideal form. But whether we can make this formal assumption in any specific case depends on whether it is lawful or justified; validity, not power, defines ‘the essence’ of the state. The juxtaposition of the two views is as old as theorisation about statehood, reminding us of the controversies between Grotius and Hobbes, Leibniz and Pufendorf, Kant and Hegel, Kelsen and Schmitt, and most of the twentieth-century controversy between ‘idealists’ and ‘realists’. Which one is right? The answer to this question has not accidentally been deferred from one round of debate to the next. Ambiguity persists. There is no reason to re-enter the debates; in some respect both positions are right – and wrong.

Secession

I have noted the 2020 'occupation' by the New Westralia secessionists of the National Trust heritage courthouse museum in York, Western Australia. 

The building was damaged, the group got some publicity for beliefs about sovereignty and the wickedness of the papacy, and no one was hurt. 

Three members of the group have now been ordered to pay over $27,000 in fines and compensation. 

The ABC notes that 

 The occupancy was streamed live on social media. The group brought a toilet bucket to see them through the weekend and drilled holes in the stone walls to set up their New Westralia banners. They also raised a flag. 

Wade William Guerin, 32, pleaded not guilty to trespass and damage at his Northam Magistrates Court trial on Thursday. His plea was despite footage being uploaded to social media showing him smashing through a door of the 1852 building. 

The amateur footage, taken by the group, showed the self-styled 'Magistrate Pumphrey' — identified by police in court as William David Atherton — holding a bible and saying, "open the doors in the name of the law" and "the bishop of Rome has no jurisdiction in this here realm of England". 

The incident triggered the building's alarm and police attended with body-worn cameras. 

'It sounded legitimate' Mr Guerin told Magistrate Donna Webb he had arrived in Australia about four months earlier and was working on farms for accommodation as the pandemic struck. He said Mr Atherton arrived on the farm to give a speech about the "government of New Westralia" which was a "Christian nation". "It all sounded legitimate," Mr Guerin said. "He said there were a few things we needed to do and one was reclaim the York courthouse. "I believe I was genuinely, honestly doing the right thing, I thought this was a genuine government." Under cross-examination Mr Guerin, who was representing himself, acknowledged he should have done more research. "Looking back I wish I had done more investigation," he told the court. 

Police body worn camera footage, played at the trial, shows a local police sergeant speaking to Mr Atherton who tells the officer to "return to barracks" and "surrender your firearms". Following the event, Mr Atherton, 54, spent two months in custody before being found 'unfit to stand trial'. Mary Frances Mount, 64, and Gary Thomas Hutton, 69, did not front court for their trial, but were each found guilty of trespass and damage in their absence. Ms Mount was also convicted of obstructing police during her arrest nearby after she left the old courthouse to buy food. 

Police prosecutor Sergeant Mark Sita said the group had "no lawful right. They were not leaseholders and they were not on the title deeds." He said the actions were the result of a "fantasy" and commands to police came from an "imaginary magistrate Pumphrey". "A reasonable person would think, 'why are we breaking into a building that is a museum at 6.30 in the morning?'," ... 

 Magistrate Webb said ...  "I struggle to understand how you got caught up in all of this," she told Mr Guerin. She said the group’s organisation and the fact that it was a historic building made the offence serious.

Webb fined Guerin $5,000, Hutton $5,500 and Mount $6,000. The group’s New Westralia banners and flags were forfeited. Guerin, Hutton and Mount were also ordered to pay $10,500 between them for the damage to the National Trust building.

Guerin's current LinkedIn profile describes him as 'Ambassador at The Government of New Westralia (de jure)'

Pseudostates

'Micronations: A lacuna in the law' by Harry Hobbs and George Williams in (2021) International Journal of Constitutional Law comments 

Around 100 active micronations exist across the globe. Led by committed and eccentric individuals, these aspirant or wannabe states assert their claims to sovereignty in myriad ways. In dressing in the language of statehood, they challenge understandings of, and approaches to, international legal personality. In this article we provide the first legal survey of micronations. We develop a conceptual framework to understand what it means to be a micronation, explore their various forms, and analyze key public law issues. Our survey reveals that, although public law has not engaged with this phenomenon, states respond to the assertion of sovereignty by micronations in both benign and violent ways.

The authors argue 

On December 2, 1977, Prince Leonard Casley of the Hutt River Province cabled a telegram to the Governor-General of Australia, declaring war. With a permanent population of fewer than twenty residents, no standing army, and the Province’s 75 km2 territory entirely enclosed by the state of Western Australia, Prince Leonard was unprepared for war. Two days later, on December 4, 1977, he cabled a second telegram announcing the cessation of hostilities. The Australian government responded to neither correspondence, but Prince Leonard nonetheless claimed victory. According to his reading of the Geneva Conventions of 1949, a state should show full respect to a nation undefeated in war. As the Hutt River Province was undefeated, Australia must recognize its sovereignty. 

Australia never recognized the sovereignty of what subsequently renamed itself the Principality of Hutt River, but Prince Leonard is not the only person who has claimed to secede and create his or her own state. Although a new state is, of course, the goal of secessionist movements across the globe, including in South Sudan, Kosovo, Scotland, Catalonia, Quebec, and elsewhere, Prince Leonard’s Principality differs from these efforts. Built around a committed and eccentric individual, possessing only a very small resident population and unrecognized by sovereign states, the Principality was an “aspirant” or “wannabe” state. More commonly, it was known as a micronation. 

In contrast to true secessionist movements, micronations are generally considered trivial and are often ignored by the state. This may be because a micronation poses no security threat to the state and lacks a foundation in domestic and international law for its claim to independence. They are also not recognized in domestic or international forums as nations. Despite this, micronations dress themselves in the language of statehood and perform acts of sovereignty. In doing so, they critique and challenge understandings of and approaches to international legal personality. 

Micronations are an oddity that sits outside conventional understandings of the law. Perhaps for this reason, no significant legal study of micronations exists. In this article, we rectify this by providing the first legal survey of micronations. We define what it means to be a micronation, explore their various forms, and analyze key public law issues relating to their establishment and existence. This provides a rich body of material from which to assess and understand these unique attempts to assert statehood. 

Micronations are diverse in form and function. In Section 2 we develop a conceptual framework for micronations to better understand and interrogate their common features and considerable diversity. We do so by first establishing a definition of what it means to be a micronation, and then situating that definition within understandings of statehood. This enables us to define and better understand micronations before exploring whether and how traditional frameworks of international legal personality relate to or comprehend this phenomenon. 

In Section 3 we explore that diversity in more detail. Drawing on our conceptual framework we survey a wide cross-section of micronations, focusing on the varied motivations for their creation. Owing to the general paucity of scholarly engagement, in many cases we rely on statements from founders and individuals connected to particular micronations. Such stories are part of a micronation’s self-created history and narrative, and are therefore valuable in understanding the reasons why a person chooses to found their own country. Our survey reveals that individuals and small groups from all over the globe purport to secede and establish their own countries for a wide variety of reasons. 

Documenting the sheer prevalence of micronations is valuable in itself. However, uncovering the multiplicity of motivations that underlie the reasons for their formation illuminates our understanding of the legal disputes they provoke. In Section 4 we discuss several key public law issues that pertain to micronations. We examine how micronations seek to assert their sovereignty and independence, as well as how recognized nations respond to such claims. As we note, while state responses range from the benign to the violent, all responses share a commitment to the full enforcement of their laws. ... 

Micronations have escaped sustained attention in the legal literature. There is no legal account that identifies and comprehensively outlines the common features and outer bounds of this phenomenon. In fact, very few non-legal efforts that offer an explanatory account of micronationalism exist. In this section, we examine three non-legal attempts to develop a typology aimed at understanding and explaining micronationalism. In doing so, we explore classificatory accounts that identify commonalities and distinctions among and between micronations with the goal of discerning a legal definition to guide our discussion throughout this article. 

Before commencing, it is important to note that all accounts agree that micronations are distinct from recognized states. While no unambiguously “accepted and satisfactory legal definition of statehood” exists, the Montevideo Convention definition is most commonly adopted. Under the Convention, an entity must meet certain conditions relating to territory, population, government, and a capacity for external relations, in order to be characterized as a state. Recognition by other states is not one of those conditions. Whether and how these conditions relate to micronations is explored in more detail in the following section. 

One of the few approaches to understanding micronations is provided by a geographer. Dallen Timothy offers a broad account that delineates between four distinct models, only two of which are properly characterized as micronations. At one end of Timothy’s spectrum sit internationally recognized, sovereign, non-state entities. These entities do not unequivocally meet the declarative criteria for statehood expressed in the Montevideo Convention, but are nonetheless formally recognized (by at least one other state) as de jure sovereign entities. For this reason, they are not strictly micronations but, usually, states with no control over physical territory. This category includes the Baltic states of Estonia, Latvia, and Lithuania during the Soviet annexation, as well as the Sovereign Military Order of Malta. Founded in 1048, the Order of Malta no longer exercises jurisdiction over any territory and is not strictly a state, but nonetheless retains a “certain international personality.” While the Order once ruled (at different times) Cyprus, Rhodes, and Malta, its physical territory is now limited to two buildings in Rome. Nonetheless, it maintains diplomatic relations with 107 states, has UN permanent observer status, and issues its own passports, stamps, and coins. 

Timothy identifies his second model of non-nations as “semi-legitimate places.” These entities have some historical foundation for claims of independence but, unlike the former category, have not been formally accepted or recognized by the international community. He suggests that the Principality of Seborga, situated in the hills of Liguria, Italy, falls within this category. As we discuss in more detail below, however, the Principality lacks any reasonable legal foundation for independence. A more obvious candidate is the Republic of Somaliland, a semi-autonomous region of Somalia that declared its independence in 1991, claiming to be the successor of the State of Somaliland. The State of Somaliland was the name assumed by the former British protectorate upon independence from the United Kingdom on June 26, 1960. It lasted only five days, joining with the Italian-administered Trust Territory of Somaliland to form the Federal Republic of Somalia on July 1, 1960. Despite arguably meeting international law conditions for statehood, the Republic of Somaliland is not recognized by any other state. Nonetheless, because its claim has some basis in law it is not a micronation. 

The last two models are more traditionally understood as micronations. In the third, Timothy identifies places with little or no claim to historical legitimacy, but which have nonetheless “earnestly attempted to lay claim to national independence.” This archetype includes the most prominent micronations, like the Principality of Hutt River in Western Australia, and the Principality of Sealand off the United Kingdom’s Suffolk coast, as well as lesser-known wannabe states like Liberland on the Danube River. We place the Principality of Seborga within this category.  

Timothy’s fourth example largely eschews control of significant physical territory. Increasingly prevalent, these are “countries” that assert independence “but are in fact little more than social clubs.” While they engage in performative acts of sovereignty, this is conducted primarily for amusement or to seek attention rather than to actively challenge state sovereignty. Typically, the jurisdiction claimed extends to the real property owned by its founder, whether that is an apartment in London, a flat in Sydney, or a house in Nevada. 

Timothy’s typology usefully articulates major distinctions among micronations, as well as between micronations and other “non-nations.” However, it does not clarify all variances between such entities. Finnish artists Tellervo Kalleinen and Oliver Kochta-Kalleinen offer a more pronounced classification, distinguishing between three models: microstates, model-states, and new country projects. According to Kalleinen and Kochta-Kalleinen, microstates are very small countries whose territory is typically less than 20,000 km2. Although they generally meet common international legal definitions of statehood, their sovereignty may or may not be recognized. For instance, while the Vatican City, Monaco, and San Marino are all recognized as sovereign states, the Principalities of Hutt River and of Seborga were and are not. 

Model-states differ fundamentally from microstates. While microstates exercise (or purport to exercise) sovereignty over a small territorial expanse, model-states do not seek to establish legitimacy on the basis of territorial claims. Rather, they are “experiments in forming a state with all of its political institutions” and symbols. Like “real” countries, model-states perform acts of sovereignty; they write constitutions, compose national anthems, design flags, issue stamps and currency, and conduct diplomatic relations with each other (and seek recognition from recognized nations). As the founder of the Principality of Nova Arcardia, Steven Scharff, has explained, model-states are a “diplomatic version of a model railroad.” 

New country projects are similar to model-states in that they also engage in performative acts of sovereignty. However, while model-states generally do not lay claim to substantial physical territory, new country projects involve attempts to actually establish a viable state by “acquiring or creating territory which does not belong to any existing state.” This can involve sea-steading initiatives in which floating structures are “arranged into atolls and archipelagos,” allowing individuals to settle on the high seas outside national jurisdiction, like the Republic of Minerva, and the Floating Island Project’s South Pacific city. It can also include emerging efforts to develop permanent habitation on satellites like the Space Kingdom of Asgardia. Many new country projects have been influenced by libertarian philosophies, and their founders have sought to develop and operate economic schemes prohibited in their homelands. More recent initiatives, like Waveland and Asgardia, may also be inspired by cosmopolitan ideals of an integrated global pan-humanity. Nonetheless, even in these cases, new country projects can carry colonial overlays and resonances. In 2014, for instance, a United States man planted a flag in the Bir Tawil desert, asserting authority over 2060 km2 of land claimed by neither Sudan nor Egypt in order to establish a kingdom and fulfill a promise to his daughter to make her a princess. 

The typologies by Timothy, and Kalleinen and Kochta-Kalleinen, are helpful in identifying distinctions between different forms of micronations. However, they also make clear that there are “incredible differences” and “no clear sense of unity” among this diverse practice. Acknowledging this, sociologist Judy Lattas adopts a simpler definition. Lattas defines micronations as “tiny countries declared by ordinary people in an act that repeats the establishment of sovereign nations, at least in some of its protocols.” Lattas’s approach is valuable as it more clearly identifies what makes micronations distinct from similar entities. Nonetheless, it still fails to capture what we understand by micronations within the context of our legal analysis. After all, some micronations are established by prominent political actors rather than ordinary people. Other micronations might have only a very small resident population but may claim authority over large areas of land, or even outer space. Furthermore, spurred by the growth of the internet, some micronations claim hundreds of thousands of citizens, significantly more than many recognized states. 

This demonstrates the need to adopt a different definition. We define micronations as self-declared nations that perform and mimic acts of sovereignty, and adopt many of the protocols of nations, but lack a foundation in domestic and international law for their existence and are not recognized as nations in domestic or international forums. Our definition simply and accurately encompasses the diversity of micronations; it includes libertarian sea-steading efforts, experimental states formed within college dorm rooms or conceptual art projects, as well as states established to publicize political agendas. It also excludes similar but distinct phenomena, such as secessionist movements, Indigenous nations, microstates, and intentional communities. 

In contrast to micronations, secessionist movements and Indigenous nations enjoy some historical foundation for their assertions of independence, whether or not that claim has been formally recognized by domestic law or the international community. Indigenous nations, for example, are distinct political communities composed of individuals united by identity that have a long history of operating as a distinct society, with a unique economic, religious, and spiritual relationship to their land. Even where the state does not recognize this claim, their legitimacy is based on this status. By contrast, perhaps reflecting the relative moral and political strength of their respective claims and legal foundations, micronations tend to be ephemeral. One of the oldest continuing micronations, the Kingdom of Elleore, was established on the Danish island of Elleore in 1944. Designed to parody the royal traditions and government structure of Denmark, the Kingdom is now only occupied for a week-long celebration each year. 

Our definition also excludes microstates and intentional communities. Like many micronations, microstates have a very small population and control a very small geographic area. However, as “modern protected states,” microstates are internationally recognized sovereign political entities; a status that distinguishes them from micronations. Intentional communities, or communes, are communities of people that live together in common and assert authority to manage their internal affairs autonomously of the state. Such communities can be spiritual, like the Mennonites, or secular, like Twin Oaks Community eco-village, in the United States. In this sense, they are similar to micronations. Importantly, however, intentional communities do not use the language of statehood, instead seeking to operate within the state, albeit on a distinct basis.

Secession and the Beast

Noting media reports - alas without much detail - dealing with the supposed secession bid in Western Australia last week by the New Westralia group, breathlessly characterised in one item as 'the sovereign nation that attempted to overthrow the state government 24 hours ago'.

The New Westies appear to be greatly worried by the mark of the beast, a Jesuit conspiracy and other nonsense. They supposedly  'declare themselves against foreign incursion, domestic insurgency, mercenary, treachery, sedition and treasonous behaviour', with member Wade Guerin  alerting people on Facebook - but of course - that 'Under diplomatic immunity we are all protected by international criminal court'. The WA Police disagree.

Guerin and three associates broke into the old York courthouse on Friday, claimng to serve notice on the WA government through decrees posted on the courthouse wall. Gone are the days where Luther nailed his tract to the front door.

The New Westies declared the building theirs, reportedly demanding keys and security codes within 72 hours and declaring  null and void all current lease agreements and management orders on the basis that New Westralia is the 'legitimate sovereign authority acting in the interests of the people native of the Dependencies of Western Australia'. The Police arrived, arrests followed, the world was unpersuaded by the message

we are under siege at the current moment in York, Australia and staying strong in our court ... please do your research as much as possible, good people ... I can only show you the way, we must all attempt our own escape and everything is in play to do so, trust me

or by the prayers of the revolutionaries.

Prayer is relevant, given their characterisation of the Australian flag as satanic, denunciation of The Bishop of Rome and reference to New Westralia as 'a Christian nation' that 'strives to be a world class destination for spiritual vitality, enlightenment, meditation, wonder and expression, on the great adventure of life'. In case you were in doubt, the New Westies claim to be 'a constituted body for true allegiance, protection, prosperity, care and maintenance of peaceful society, and the depository for the proper administrative governance for the people native of the Dependencies of Western Australia'.

The people have been charged with criminal damage, trespass, and obstructing police.

The Friends of New Westralia site states

New Westralia (trust) is a constituted body (Executive Council) for true allegiance, protection, prosperity, care and maintenance of peaceful society, and the depository for the proper administrative governance for the people native of the Dependencies of Western Australia. 

New Westralia body politic (Executive Council) is based on a model of co-operative association of peers, one share – one vote, representative governance from local council upwards. 

New Westralia attests to be the legitimate sovereign authority acting in the interests of the people native of the Dependencies of Western Australia, their heirs and successors, And, Defender of the Imperial Realm proper in the name of Her Majesty Queen Elizabeth the Second, the Protestant Supreme Governor of the Church of England in her absentia by capture, retardation, disinterest, or uncaring of Her loyal subjects current plight, as it may be. 

New Westralia attests to be the proper Governing body of law for the Dependencies of Western Australia, and other Territories inclusive, taking the usufruct in safe hands for the benefit of the people of the Dependencies of Western Australia. 

New Westralia stands against foreign incursion, domestic (terrorism) insurgency, mercenary, treachery, sedition and treasonous behaviour against the Imperial Crown proper or injurious to the people of Western Australia, or our other Australian friends. 

New Westralia pledges reciprocal loyalty and true allegiance, to govern in good faith and return confidence to the institutions and structures of a Just Society, with Certainty of Future paramount to the interest of harmony, peace and security. 

New Westralia offers, advocacy, investigation and protection from unwanted intrusion, servitude, commercial predation, alienation of rights and property among other things.

The Mission Statement is a hoot, complete with the usual sovereign citizen mumbo jumbo about all caps names

Hierarchical order and system malfunction  

The spiritual War 

Christian/ spiritual (Universal) faith - Enlightenment v Dark forces satanic cult control matrix (Protestant Church of England v Roman Vatican cult/ Global UN NWO/ Elite 1%) 

The Governor in trust 

Supreme Governor of the Protestant Church of England – Queen Elizabeth the Second, Defender of (Universal) Faith. 

The free men 

The free men/ People – Subjects of Her Gracious Majesty (free- will/ choice)

 The Constitution

Commonwealth of Australia Constitution (1901)

The inherent design flaw within 

S51 allows Parliament discretion to make laws/ treaty and many other things. (Deliberate subterfuge to maintain control/ the inherent design flaw within).   

The COMPANY  

AUSTRALIA corp (Jesuit control/ “The COMPANY”).  

The CITIZEN 

PERSONS= Legal Personality/ CITIZEN (OF ROME),with Numerical Legal Entity Identifier (LEI). 

The Number of the beast.  

Workers/ contractors/ mercenary service, bound by the terms of the contract/ Bondsmen. 

The CONTRACT 

Drivers Licence, Passport, Social Security, medicare (ALL CAPS NAME) (The voluntary Contract = Performance / Consent) 

Conditions  

All legal PERSONS operating within “The COMPANY” (AUSTRALIA) are Bound by the terms and conditions imposed upon them in (voluntary)servitude. 

Alteration of contract 

The COMPANY may alter or amend those terms and conditions periodically where continued consent is presumed by acquiescence or performance. 

Personal Representation accepted 

That is to say, if you say nothing(silence) or should you mark the Polls/ Head count (vote, object or protest) thereby clearly accepting the attendant Personal representation/ liability of that Undertaking. 

Impaired Performance 

Where objection, protest or belligerence dishonours or impairs (YOUR) performance to the consensual undertaking (the contract) there is sufficient legal evidence to constrain non- performance obligations, by WHAT EVER FORCE SEEMS REASONABLE, PROPORTIONATE and NECESSARY. 

Protest 

All protest, discontent, belligerence, agitation, threat, violence causing damage, loss or injury (in it’s legal sense) is contained within the Contract THE BELL/ DOME). 

Justification for the use of Force 

Should the COMPANY amend, alter or change the terms of that contract(Legislation amendments) and your consent be provided (in it’s legal sense) and people protest, agitate, threaten (Rebel) against the new rules, force may be Justifiably used to quell any insurrection. 

Visualisation- the Bel/ Pressure Dome 

In a visualisation we could imagine a bell or dome where the top of the bell is the Legislated Rules of the COMPANY we have consensually agreed to abide by, by our acquiescence or performance (accepting the benefit of CITIZENSHIP). 

The shape of the Bell/ Pressure Dome 

The tapered sides of the bell/ dome are the penalties imposed on infraction of the agreed rules, thereby containing the belligerence under its own pressure. 

The Pressure increases 

Should the new rules imposed cause anxiety or trouble the PERSONAS legally employed in occupation, and social unrest will press against the steadily tightening walls of the bell/ dome and without relief something must give as the pressure naturally increases.... 

Reality exposed 

This is the constructive reality we observe today, mandated vaccinations, loss of rights, applied force against insurrection(police state/ martial law), frustrated protest or objection, ever changing political rules, financial limitation, poverty and depression all contained inside the bell where relief is completely and utterly dependant upon the whim of the COMPANY. 

Our Naivety 

If you would be so naive to think that the mob has the necessary might or organisation to overwhelm or remove the COMPANY you would be grievously mistaken. 

Know Who You Are 

To remove yourself form the occupation(the COMPANY) you may have mistakenly undertaken allegiance, pledging obedience to the foreign occupier you must know who you are, and behave with dignity and restraint. 

Find Godliness and peace 

Find god or/ and the mystery/ mastery of your self. 

The Remedy 

There you have your peaceful remedy.

Schmitt

'The Schmitelsen Court: The Question of Legitimacy' by Or Bassok in German Law Journal (Forthcoming) comments

 In recent years, a new creature has emerged on the institutional landscape: the Schmitelsen Court. This Court is the end-product of a combination of the positions presented by Hans Kelsen and Carl Schmitt in their famous debate during the Weimar years on “Who is the Guardian of the Constitution?”. The Schmitelsen guardian is a court thus fulfilling Kelsen’s vision of the constitutional court as the guardian of the constitution. However, it possesses the mission, the means to achieve it, and the source of legitimacy that Schmitt envisioned for the president as the guardian of the constitution. In this Article, I focus on the Schmitelsen Court’s source of legitimacy that differs greatly from the traditional source of judicial legitimacy that Kelsen envisioned for the guardian. Whereas Kelsen viewed legal expertise as the guardian’s source of legitimacy, Schmitt viewed public support as filling this role. 

After analyzing these two positions, I explain why it is vital for the Schmitelsen Court to harness public support as its source of legitimacy. I proceed by examining how the Schmitelsen Court model manifests itself in three case studies. In the US, Alexander Hamilton in the Federalist No. 78 raised the notion of the guardian of the constitution long before Schmitt and Kelsen did so. He designated the judiciary as the guardian and ascribed expertise as its source of legitimacy. After describing how in recent decades the American Supreme Court adopted the Schmitelsen understanding of judicial legitimacy, I turn to examine the Israeli Supreme Court and the European Court of Human Rights. The relevance of these latter two courts stems not only from their adoption of the Schmitelsen Court’s understanding of judicial legitimacy, but also from the strong influence of the Weimar lessons on their evolution into a Schmitelsen guardian.

'Nationhood and Section 61 of the Constitution' by Peta Stephenson in (2018) Vol 43(2) University of Western Australia Law Review 149

 explores the relationship between the nationhood power and s 61 of the Constitution. It argues that, in the majority of decided cases, the nationhood power has not supported the Commonwealth Government engaging in coercive activities that would have been denied to it at common law. The key issue that has arisen in the case law has been whether an executive act fell within a subject matter of Commonwealth executive power. In this regard, the Court has found that Australia’s attainment of nationhood expanded the areas of Commonwealth responsibility over which the executive power could be exercised. It is further shown that the nationhood power has not undermined the federal distribution of powers. The Court has, in ascertaining whether an executive act is supported by the nationhood power, consistently applied Mason J’s ‘peculiarly adapted’ test, which was set out in Victoria v Commonwealth and Hayden (‘AAP Case’). This test incorporates federalism to condition and limit the nationhood power.

Stephenson comments

Section 61 is the principal repository of Commonwealth executive power in the Constitution. It vests the executive power of the Commonwealth in the Queen and states that it is exercisable by the Governor-General and ‘extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth’. Section 61 ‘marks the external boundaries’ of Commonwealth executive power but does not define it. The meaning of s 61 can only be properly understood if it is considered in the light of British constitutional history, conventions and the common law. 

Consistent with our British heritage, it is now generally accepted that, in addition to executive powers sourced directly in the Constitution and conferred by statute, s 61 incorporates all of the common law or ‘non-statutory’ powers of the Crown that are appropriate to the Commonwealth, subject to the federal distribution of powers effected by the Constitution. In a classification that has since received judicial endorsement, Sir William Blackstone divided the common law powers into two categories, namely, the prerogative powers and capacities of the Crown. The ‘prerogative’ was understood as referring to ‘those rights and capacities which the King enjoys alone, in contradistinction to others, and not to those which he enjoys in common with any of his subjects’, such as the power to declare war and peace, enter into treaties and confer honours. ‘Capacities’, on the other hand, were those powers that the Crown shared in common with its subjects. Of the Crown’s common law capacities, the power to contract and spend has received the most judicial consideration in recent years, following a spate of High Court challenges to controversial Commonwealth spending programs. 

In Victoria v Commonwealth and Hayden (‘AAP Case’), four Justices of the High Court confirmed that the executive power in s 61 also incorporated an implied executive power derived, in part, from Australia’s national status. Mason J gave the most precise formulation of it, describing it as ‘a capacity to engage in enterprises and activities peculiarly adapted to the government of a nation and which cannot otherwise be carried on for the benefit of the nation’. This aspect of the executive power has been described as the ‘inherent power’,or ‘implied national power’. More commonly, scholars have referred to it as the ‘nationhood power’, notwithstanding that, until fairly recently, this description was not adopted by a majority of the High Court of Australia. 

Not booking a one-way ticket to Asgardia

There is a long and colourful history of people - in Australia and elsewhere - setting up their own states, or what are purported to be states, gaining headlines and often ending in tears.

In Australia for example we have had the pseudo-state known as the Empire of Atlantium and the self-declared Prince John, Grand Duke of Avram, Marquis of Mathra, Earl of Enoch, Viscount Ulom, Lord Rama, Cardinal Archbishop of the Royal See of the Continent of Australia, Knight of Bountiful Endeavours, Knight of Sword, Knight of Merit (aka John Rudge).

I'm thus unsurprised to see the latest announcement about the Kingdom of Asgardia, a new 'nation' that will supposedly be located in space (possibly with real estate on the Moon rather than merely space stations) and supposedly feature a data haven that's more effective than Sealand.

The ABC has breathlessly reported

A Russian billionaire has held a lavish ceremony at a castle in Austria to declare himself the leader of a new, independent "space nation" called Asgardia. 

The self-funded event was held at the opulent Hofburg palace in Vienna and included a choral performance of the nation's anthem, an official oath, and a video message from Russian cosmonaut Oleg Artemiev on the International Space Station.  ... 

Asgardia is the brainchild of Russian rocket scientist Igor Ashurbeyli. He wants it to be the first fully independent "nation" in space, with its own government, virtual currency, justice system and calendar. ... While functioning as a real nation, Asgardia would also help protect the Earth and keep the peace in space, according to the project's official website. 

"Is it pioneering, futuristic and visionary — or madness? Call it what you will, and time will tell," Dr Ashurbeyli says. 

At the moment, anyone can become a citizen of Asgardia. But Dr Ashurbeyli has said he wants to attract the world's most creative minds, and may eventually bring in a mandatory IQ test for potential Asgardians. 

More than 200,000 people have already signed up via the nation's website, including thousands of Australians, but Dr Ashurbeyli wants to recruit a total population of about 150 million within the next 10 years.

The promo for Asgardia is somewhat confusing; on occasion the Asgardia site refers to it as a "space kingdom" in "low earth orbit".

In my doctoral dissertation I note the glorious history of pseudo-states, which often hold sway over no more than the teenage president or monarch's bedroom. Asgardia alas does not feature Rocket the Raccoon as its national animal but at least was not called the Kingdom of Chlamydia, Empire of Giardia or Space Republic of Delirium. I am reminded of Frank Zappa's comment on the signifiers of nationhood: "You can't be a real country unless you have a beer and an airline. It helps if you have some kind of a football team, or some nuclear weapons, but at the very least you need a beer."

Its pretensions are contrary to the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (aka Outer Space Treaty) and Montevideo Convention on the Rights and Duties of States 1933. Tthere is no reason to believe that it will achieve one of the key requirements in international law regarding statehood, ie recognition by existing states of Asgardia's existence, the authority of its passports, the immunity of its head of state - King Igor - and diplomats under the Foreign State Immunities Act 1985 (Cth), Vienna Convention on Diplomatic Relations 1961, Diplomatic Privileges and Immunities Act 1967 (Cth) and so forth.

Among Australian case law on non-recognition of such fantasy states see ACCC v Purple Harmony Plates Pty Ltd (No 3) [2002] FCA 1487, Commissioner for Fair Trading, Department of Commerce v Hunter [2008] NSWSC 277, Australian Prudential Regulation Authority v Siminton (No 6) [2007] FCA 1608, Casley v Commissioner of Taxation [2007] HCATrans 590 and Deputy Commissioner of Taxation v Casley [2017] WASC 161, Roman and Anor v Commonwealth of Australia and Ors [2004] NTSC 9, Williamson v Hodgson [2010] WASC 95, Maxwell (also known as Harley Robert Williamson) v Bruse [2012] WASC 12 and Avram v Official Trustee in Bankruptcy [2001] FCA 1480.

Hutt is noted here; Roman here.