User:ImTheIP/History: Terra Nullius

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History

terra nullius stems from the Roman law term res nullius, meaning nobody's thing. According to the Romans things without an owner, such as wild animals, lost slaves and abandoned buildings, were res nullius and could be taken as property by anyone by seizure.

There is considerable debate among historians about how and when the terra nullius concept were used. The debate has been especially prevalent in Australia where it was ignited by the History wars caused by the Mabo case in 1992. The history wars caused Australian historians to reevaluate the country's history, the dispossession of Aborigines and whether the land best should be characterized as having been "settled" or "conquered." A part of this debate concerned whether terra nullius as a concept was ever used by England and other European powers to justify territorial conquest.

On one side of the debate are historians such as Alan Frost and Henry Reynolds who claims that in the 15th and 16th century, European writers adopted the res nullius concept for territorial conquest. Frost writes

By the mid–eighteenth century, the theoretical basis of a new convention of acquiring empire had emerged. If a European state (a Christian Prince) had already established an effective possession of a region, another might acquire title to it only by formal cession (which might or might not involve outright purchase). If the region was not already possessed by a rival, then a state might acquire it in one of three ways, viz.: – by persuading the indigenous inhabitants to submit themselves to its overlordship; – by purchasing from those inhabitants the right to settle part or parts of it; – by unilateral possession, on the basis of first discovery and effective occupation.

Historians debate whether "first discovery and effective occupation" was applied to territory inhabited by indigenous people that European empires sought to acquire or not. According to Frost

However, if the indigenes had advanced beyond the state of nature only so far as to have developed language and the community of the family, but no further; if they had not yet mixed their labour with the earth in any permanent way; or if the region were literally uninhabited, then Europeans considered it to be terra nullius (ie, belonging to no one), to which they might gain permanent title by first discovery and effective occupation.

On the other side of the debate are historians which claim that terra nullius is a much younger concept, which didn't become formalized before the end of the 19th century. Historian Merete Borch writes:

When the wealth of material relevant to this issue is surveyed it seems much more likely that there was no legal doctrine maintaining that inhabited land could be regarded as ownerless, nor was this the basis of official policy, in the eighteenth century or before. Rather it seems to have developed as a legal theory in the nineteenth century.

These historians claim instead that territorial conquest was justified from natural law — that which has no owner can be taken by the first taker. Michael Connor in his book "The Invention of Terra Nullius" takes an even more extreme view and argues that no one in the 19th century thought of Australia as being a terra nullius. He calls the concept a legal fiction, a straw man developed in the late 20th century:

By the time of Mabo in 1992, terra nullius was the only explanation for the British settlement of Australia. Historians, more interested in politics than archives, misled the legal profession into believing that a phrase no one had heard of a few years before was the very basis of our statehood, and Reynolds' version of our history, especially The Law of the Land, underpinned the Mabo judges' decision-making.

First use of the term Terra Nullius

A part of the debate over the history of terra nullius is when the term itself was first used. According to professor Andrew Fitzmaurice, territorium nullius and terra nullius were two different, albeit related, legal terms. He claims that territorium nullius was first used in a meeting of the Institut de Droit International in 1888 where the legal principles of the Berlin conference discussed and that terra nullius was introduced twenty years later during legal disputes over the polar regions.

Historian Michel Connor on the other hand, argues that territorium nullius and terra nullius is the same thing. Both scholars are active in the Australian History wars debate.

Sources

• http://www.ejil.org/pdfs/16/1/289.pdf
• http://surplusvalue.org.au/Misc%20Articles%20and%20Poems/terra%20nullius%20copy.pdf
• http://www.sunray22b.net/truth_or_not_in_academic_accusations.htm
• http://clubtroppo.com.au/2004/06/30/another-history-war-skirmish/
• http://www.kooriweb.org/foley/resources/pdfs/76.pdf
• http://samuelgriffith.org.au/docs/vol1/chap11.pdf
• http://sydney.edu.au/news/84.html?newsstoryid=948
• https://www.samuelgriffith.org.au/papers/html/volume19/v19chap11.html