Nauru’s Prohibition on Transfers of Land to Non-Citizens

Earlier, I used the “cybernation of Wirtland” as a thought experiment for discussing how international law might treat the acquisition of territory for the deliberate purpose of obtaining sovereignty. Wirtland has ‘proposed’ to acquire territory, and therefore eventually achieve statehood, by entering into a deal with Nauru by which Wirtland would obtain sovereignty over Nauru’s strip minded lands.

Although Nauru would be entirely free to enter into such a deal, as the principle of permanent sovereignty requires that every State recognize “the inalienable right of all States freely to dispose of their natural wealth and resources in accordance with their national interests,” (GA Resolution 1803 (XVII), preambular para.5), there are many reasons to seriously doubt another entity could achieve statehood by acquiring them.

It turns out I was looking at the issue far too abstractly. While I still think it is an interesting question as to whether or not a country can, in a financial transaction, withdraw claims of sovereignty over a portion of its territory and grant them towards the establishment of an entirely new State with no prior existence, using Nauru as the hypothetical example is a nonstarter. Nauru is, in itself, an interesting test case for many of our notions of sovereignty, but it cannot be the basis of a new nation’s claim to territory — because Nauruan law prohibits the alienation of real property to non-Nauruan citizens.

I knew from the Case Concerning Certain Phosphate Lands in Nauru that phosphate mining in Nauru took place under a series of complex mandates, trusteeships, and leases, and I got curious about who exactly would have been said to be “sovereign” over Nauruan territory prior to Nauru’s independence in 1968.

While looking up stuff about that, though, I was surprise to see that under Nauruan law today, it is a criminal offense to sell land to a non-Nauruan citizen, and any such attempt to do so will result in a void transaction. The Lands Act 1976 of Nauru provides that:

(1) Transfer inter vivos of the freehold of any land in Nauru to any person other than a Nauruan persons prohibited, and any such transfer or purported transfer, or any agreement to execute any such transfer, shall be absolutely void and of no effect.

(2) Any person who transfers, or agrees attempts or purports to transfer, the freehold of any land in Nauru to any person other than a Nauruan person is guilty of an offence and is liable to imprisonment for six months.

So, looks like Wirtland needs to buy land from someone else.


Sorry, Wirtland, You’re Not a Sovereign– Try Again In A Couple Centuries or So, Maybe Custom Will Have Changed Enough By Then

A few days ago, I got a comment on my post about Nauru’s recognition of Abkhazia. It linked to the blog for the Sovereign Cybernation of Wirtland:

According to official press release, Wirtland approached the government of Nauru with a formal proposal to transfer a piece of its territory to Wirtland. Nauru, one of world’s smallest island nations situated in the South Pacific, has vast barren terrain left over after several decades of phosphates mining. “Proposal for Monetization of Unused Land by cooperation between Republic of Nauru and Wirtland” is intended to utilize a piece of Nauru’s barren terrain. According to the Proposal, “Republic of Nauru officially assigns a piece of its territory, of any quality and size, to Wirtland. Nauru will have a major stake in future sales of land from this territory, agreed in contract”. In his letter addressed to the President of the Republic of Nauru, Chancellor of Wirtland underlined his hope that “such a plan, if realized, will make a positive effect on the economy of Nauru”.

How intriguing. Looks like someone is trying to implement my “buy a sandbar, become a nation!” idea. And if you’re interested in becoming a part of this burgeoning new developing country, you can of course get your citizenship application here. [PDF]

It’s almost too bad the scheme could never work. But Wirtland does get points both for creativity and for dreaming large.

Still, I’m a bit unclear as to how Wirtland plans exactly to carry out its ambitious national goals, given its limited “citizenship” base and non-existent power of taxation:

Wirtland aims to become economically self-sustaining. Wirtland builds communities, which will offer political and economic benefits, generate employment opportunities, provide new sources of artistic creativity and independent opinion-sharing.

To take Wirtland seriously for a moment, what happens if Nauru agrees to the deal they’re offering? Don’t say it won’t, if anyone will go along with the Wirtland scheme, it’s Nauru — they’ve already made clear their recognition goes to the highest bidder, and Nauru’s state recognition powers are arguably far more valuable than are the bleached and stripped patches of land in question. I’d say it’s extremely unlikely, given Wirtland’s limited financial resources, and the fact that Nauru’s recognition normally comes with a multi-million dollar price tag, but I’ll concede the idea is at least plausible.

So Nauru agrees. Now what? Wirtland has “land”, but not permanent population, no government with control over the territory, no capacity to enter into foreign relations, and (unless they convince Nauru to toss it in to sweeten the deal) no recognition. (Although I’m sure Wirtland would counter by pointing out that that they so can too enter into international relations. See, just check out their press release on the Georgia-Russia conflict! That’s totally a capacity to engage in foreign diplomacy!)

But private entities purchase land all the time, and don’t thereby become “sovereign” under international law due to their ownership. Even if Nauru bizarrely agreed to cede all rights and ability to control the land (which is unlikely), that would not necessarily change Nauru’s status as sovereign over it. Guantanamo Bay, for instance, is rented by and occupied by the United States, but formally, the area is still a part of Cuba’s sovereign territory.

In the event of Nauru ceding land to Wirtland, the most likely result is that the rest of the world simply continues to treat the “Wirtland” territory as Nauruan sovereign soil, and completely fails to acknowledge the existence of any entity calling itself Wirtland. As a practical matter, the issue is probably moot, as it’s not as if anyone else in the world is remotely interested in that particular piece of Nauruan real estate. So there will be no invasions or occupations or other scenarios which might present a legal challenge to the national character of the land, and so no reason for the precise legal status of the phosphate mines to be determined. But under international law, it is about as close to black letter law as you can get that the territory will not be considered Wirtland sovereign soil.

This would be due in part to the fact that Wirtland does not meet any of the other indicia of statehood. But, mostly, it would be due to the fact no other State on earth would give Wirtland recognition. The idea is just too preposterous, too cognitively jarring, for enough people all over the world to simply begin believing in the communal fiction of its statehood — and furthermore, Wirtland is too small to be a potential political benefit or a potential threat to other States, so Wirtland has no hope of short circuiting the normal process of recognition by bullying its way into statehood either.

Not to mention, under the Website Theory of Statehood, the most Serious and Authoritative barometer of statehood ever invented, Wirtland does not really present a strong case for sovereignty. Wirtland’s website only rates somewhere in the middle of the pack. Which sounds all right, until you consider that, as a “cybercountry,” really it should be held to a much higher standard with regards to its online presence than are the rest of the world’s currently unrecognized sovereigns.


How Much Noopolitik Do You Want For That Realpolitik?: Nauru’s Recognition of Abkhazia

The recognition of a State by another State is usually based upon a mixture of factual and political concerns — factually, does the state meet all the traditional criteria of statehood, and politically, what are the risks and rewards of recognizing or refusing to recognize another sovereign. The tiny island nation of Nauru, however, has shown the potential of a third important consideration: raw financial compensation.

For $50 million, Nauru has effectively sold its vote in the statehood electoral college to the fledgling international entity of Abkhazia. Hat tip International Law Prof.

Nauru, an eight-square-mile rock in the South Pacific with about 11,000 inhabitants, was no pushover, according to the influential Russian daily newspaper Kommersant. In talks with Russian officials, Nauru requested $50 million for “urgent social and economic projects,” the newspaper reported, citing unnamed Russian diplomats.

This is not the first time Nauru has put a price tag on recognition of statehood. Back in 2002, in a somewhat more contentious situation, Nauru switched its recognition from Taiwan to the PRC for $130 million. So in merely 7 years, the price has already fallen dramatically, by $80 million.

This could of course be a case of price discrimination — Nauru knows China can afford to pay a lot more than Abkhazia — or perhaps it could be argued that Nauru’s recognition was more valuable to China as it was not just a vote for them it was a vote against Taiwan. But I think it is more likely that the difference in price can be attributed to a decrease in the service’s value.

State recognition is more art than science, but the specific motivations behind a State’s decision to recognize another State do affect how much weight that choice to recognize is given when it is factored into the overall statehood calculation. Now that we know Nauru is willing to give a vote of statehood to any wannabe sovereign that can meet its price, the significance of recognition by Nauru as an indicia of statehood will be severely discounted. Therefore, the more often Nauru engages in recognition-for-cash sales, the more Nauru’s recognition will decrease in value. Just like the phosphate that once sustained Nauru’s economy, recognition is a non-renewable resource, and will not sustain Nauru forever.

Essentially, for a mere $50 million, Nauru has sold off a portion of its international law making power to Abkhazia.

On the other hand, Abkhazia may benefit from the trade in other ways. Although Nauru’s recognition is worth little in itself, the fact Abkhazia was able to demonstrate its ability to acquire $50 million, engage in international diplomacy with another recognize state, and donate a sum of money as “foreign aid” could signal to other nations that Abkhazia is a serious player after all.

Under Article 1 of the Montevideo Convention, the fourth and final qualification for statehood is a “capacity to enter into relations with the other states.” The deal may have been somewhat sordid and tacky, but nevertheless, by acquiring Nauru’s recognition, Abkhazia proved it had the capacity to engage in foreign relations.