‘unsettled’ thoughts on ‘Terra Nullius’, International Law and Cook’s Journal

July 6th, 2014

Hello from Oxford University. Today, I’m in the middle of writing a thesis to conclude my masters studies on the social science of the internet, though yesterday I was jarred upright with news articles from back home. This ‘unsettled’ Abbott business prompted me to consider more vividly, ‘Terra Nullius’ and powerful colonial discourses being harnessed today in Australian politics.

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Terra Nullius and persistent agricultural hegemony against mobile peoples (think Nazis and Gypsies of Germany, or criminalised vimukta jati of India) is outlined by Gilberte (a leading law scholar in this area), who has skillfully elaborated on the concept’s underlying foundations and the complex challenges ahead (see excerpt below). In a nutshell, according to the law when nomadic peoples are not visible or ‘settled’ in a region it is not possible to claim nomadic territorial sovereignty. Whilst anthropological evidence shows territorial rights can exist and extend to area use by nomads, legitimised law currently reads sovereignty is defined by the criteria of the state and its structures. Looking outside of national systems, unfortunately, International law doesn’t yet see extensions of sovereignty to nomadic use of territory. And so we are still challenging dominant legal understandings of territorial sovereignty to #recognise cultural ties  to place. With cultural ties, comes differing worldviews and knowledge practices which are more difficult to perform or represent, let alone positively ‘prove’ to a court of western-bent thinkers. I’ve pasted a section below, its academic but worth it for a better understanding of the land governance arena in action.

On the 22nd August 1770, Cook landed at Bednang or Cook’s Possession Island, hoisted a flag and wrote this note in his diary

“…before and after we landed Anchor’d we saw a number of People upon this Island arm’d in the same – manner as all the others we have seen except one man who had a bow and a bundle of Arrows   the first we have seen on this coast. from the appearence of these People we expected they would have opposed our landing but as we approached the Shore they all made off and left us in peaceable posession of as much of the Island as served our purpose. … the Eastern Coast from the Latitude of 38° South down to this place I am confident was never seen or viseted by any European before ^us and therefore by the same Rule belongs to great Brittan Notwithstand I had in the Name of his Majesty taken posession of several places upon this coast I now once more hoisted English Coulers and in the Name of His Majesty King George the Third took posession of the whole Eastern Coast from the above Latitude down to this place by the Name of New South ^Wales together with all the Bays, Harbours Rivers and Islands situate upon the same said coast   after which we fired three Volleys of small Arms which were Answerd by the like number by from the Ship  …  We saw on all the Adjacent Lands and Islands a great number of smooks a certain sign that they are Inhabited and we have dayly seen smooks on every part of the coast we have lately been upon —”

Whether purposefully or not, Cook lacked the cultural respect that those fires on the horizon were – from what Indigenous and non-Indigenous fire ecologists evidence today – part of a complex system of Indigenous ownership and land management. According to the Indigenous socio-ecological calendar patterns around this region, the Kaurareg people were engaged in traditional patchwork burning, a negotiated work and economic activity relating to the planning and predicting of plant and grassland paddocks. As still happens today, the Kaureg were gardening. The family groups were carrying out cultural and obligatory responsibilities of land maintenance, to enrich relational well-being of the land, sea, animals, plants, good tuckers, and fresh waters systems.

Today in OZ, there is a more nuanced embrace emerging within the Australian people as a whole, towards enhancement of our Indigenous brain trust and its unique contribution to the bounty of this continent, from the past and into the future. These are values and multiplicative tolerances that heal us as a distinct collection of peoples and connect us together amongst an increasingly complex and negotiated global space. As a whole, and to add my humble voice as questioning, we must do what we can to swell this debate and seriously question the legitimacy of our current government’s impoverished leadership philosophy.

 

From Gilberte 2007 … B. ‘Vacant’ Territories': Nomadism as a Terra Nullius

 Under international law states can occupy any empty territory. This rule comes from the Roman law principle of terra nullius, meaning that any uninhabited territory is open to conquest and can be occupied by states.36 This principle has been extensively used by colonial powers in relation to nomadic peoples’ territories, which were regarded as belonging to no one and open to colonisation. The ‘agricultural argument’ coupled with the concept of terra nullius meant that the use and occupation of territories by nomadic peoples had no standing, did not need to be respected and could not constitute a source for ownership or use of the land. It was only in 1975, in the Western Sahara case, 37 that the relationship of nomadic peoples to their territories was recognised in international law…
 
…despite the rejection of an unmitigated application of terra nullius to territories inhabited by nomadic peoples, international law still does not regard nomadic peoples as legal occupiers of their territories. This failure to recognise nomadic peoples as potential ‘effective occupiers’ of their lands is based on the diffuse but persistent belief that because nomadic peoples are continuously moving from place to place they do not really occupy the lands. The view that nomadic peoples and hunter-gatherers are not attached to any particular place has developed despite the work of modern anthropologists which proves how nomadic peoples have developed spiritual ties, and social and spatial boundaries to specific territories.48 While Deleuze and Guattari observe that no nomadic population wanders aimlessly and randomly,49 a key obstacle to recognition of title to territory lies in the fact that different sub-tribal groups often use the same territory in different ways and for different purposes. Yet, as Deleuze and Guattari also point out, the sharing of territories between nomadic groups and other groups (settled or nomadic) is done on the basis of very organised agreements; they refer to such sharing of territories as ‘negotiated space’ or ‘distributional spaces’. 50 Evidence from both sociological and anthropological studies proves that for generations nomadic peoples have developed very strong ties with their territories, which are usually designated grazing, fishing or hunting areas.51
 
 International law fails to recognise these ties as proof of effective occupation of territory. Only states can exercise a form of collective territorial ownership under their right to territorial sovereignty. In contrast, nomadic peoples are not recognised as effective occupiers; although one possible exception is that of nomadic peoples forming a state of their own. 52  And as Jennings and Watts have highlighted: ‘A wandering tribe, although it has a government and is otherwise organised, is a not a state until it has settled down in a territory of its own.’53 In other words, nomadic peoples cannot exercise territorial sovereignty nor can they claim status as a state.  
 
 Public international law, and more particularly the rules governing title to territory, does not recognise any territorial rights for nomadic peoples, remaining constant in its approach that only a settled state can exercise territorial sovereignty. The criterion of statehood requiring that a state have a defined territory has not yet been read as possibly including the nomadic use of such territory, and nomadic peoples must fit into the structure of a state in which the majority is settled. As there are very few places in the world that have a predominately nomadic population that could potentially claim statehood and challenge the present understanding of territorial sovereignty, 54 nomadic peoples must look beyond the rules governing title to territory to find ways that would allow them to claim rights over their traditional transient territories. Such an avenue has been developed for nomadic peoples under the banner of indigenous peoples’ rights, under which international law has started to acknowledge that cultural ties to territory could be the source of rights over territories for indigenous peoples. (Gilbert, 2007)

***

Notes from Gilbert, J. (2007). Nomadic territories: A human rights approach to nomadic peoples’ land rights. Human Rights Law Review, ngm030. p12

36 For a comprehensive overview of terra nullius, see Bedjaoui,Terra nullius,‘droits’ historiques et autode.termination (The Hague: Sijthoff, 1975).

37 Advisory Opinion, ICJ Reports 1975, 12.

48 See, for example, Casimir and Rao (eds), Mobility and Territoriality (NewYork: Berg, 1992).

49 Deleuze and Guattari, Mille Plateaux (Paris: Minuit,1980) at 609.

50 Ibid. at 10.

51 For references, see generally Casimir and Rao, supra n. 48.

52 There is no state with a nomadic structure. The closest example is the case of the Western Sahara. In the past, Mongolia was often regarded as a ‘nomadic’ empire; however the contemporary status of the state does not make any specific recognition of nomadism. See Humphrey and Sneath, The End of Nomadism Society? Society, State and the Environment in Inner Asia (Durham: Duke University Press, 1999); Allsen, ‘Sharing Out the Empire: Apportioned Lands Under the Mongols’, in Khazanov and Wink (eds), Nomads in the Sedentary World (London: Curzon, 2001) 172; and Mearns, ‘Community, Collective Action and Common Grazing: The Case of Post-Socialist Mongolia’, (1996) 32 Journal of Development Studies 297.

53 Jennings and Watts, Oppenheim’s International Law, Volume I, 9th edn (London: Longman, 1992) at 563^4.

54 See Castellino, ‘Territory and Identity in International Law: The Struggle for Self- Determination in theWestern Sahara’, (1999) 28 Journal of International Studies 523.

Energy Sovereignty film receives special mention at festival in Venice

December 6th, 2012

Our latest collective UNU videobrief Energy Sovereignty has received a special mention at the Think Forward Film Festival in Venice, Italy (Nov 30-Dec 1, 2012). The work looks at energy innovation and traditional knowledge, and the various challenges for Indigenous peoples when facing the new energy revolution.

Stories include: tribal wind projects in the US; hydro-electric projects which have oppressed Guatemalan communities, solar project for cultural survival in Altai, and energy sovereignty in North-eastern Siberia. Made with dear friend Randall Wood and the UNU team in Tokyo, the work evolved through the collaborative efforts of several indigenous groups connected to UNU-IAS TKI and the generous creative commons community on Vimeo. It premiered in English with Italian subtitles. You can download your own version of the multilingual DVD here.

Well done everyone!

The Think Forward Film Festival was established in Venice in 2011, with the aim to study, discuss, and disseminate climate change as well as the issues related to energy efficiency and renewable energythrough both short and feature films. The Think Forward Film Festival is a project of the International Center for Climate Governance(ICCG), a joint initiative of Fondazione Eni Enrico Mattei (FEEM) and Fondazione Giorgio Cini, now an internationally renowned centre whose research activities focus on the design of climate policy and governance. The festival will feature films and documentaries as well as a selection of the best short films from the competition, new to this second edition. There will be side events such as meetings and discussions with directors and actors. Some activities will be aimed to inform both students and teachers on issues related to climate change and renewable energy sources in order to both increase awareness as well as to encourage discussions on these topics among young people. The Think Forward Film Festival has made sustainability its founding principle, for instance, by printing materials on FSC-certified recycled paperusing zero kilometre catering, and preferring to use digital communication to air travel when organising events. http://thinkforwardfestival.it/home-en/the-festival/

Documentary methodology

November 7th, 2012

For those documentary filmmakers out there, here’s Oscar-nominated Sean Fine (War Dance), humbly sharing his method. Follow your gut, live life with your storytellers, be a small crew.

4th horizon of capitalism & platform economies

November 4th, 2012

Interesting viewing… from recent “Meanings” conference in UK.

Here’s Vinay Gupta‘s jam packed “Plausible Utopias”. The bodhisattva certainly has a way with scenarios.

 

At the same conference, Indy Johar discussed the fourth horizon of capitalism, social hydra and platform economies (lecture is a bit slow to start but hang in there). He exampled growing political movements away from a centralised “private economy” and towards a decentralised “civil economy”. Platform economies, as most computer boffins already know, are particularly salient phenomenon socialising us. The rise of MPESA (“mobile digital money ” in Kenya) has been heralded with other socially inclusive examples here

Slide from Johar’s presentation

Anyone with views on this, I’d be happy to hear. @cittw

 

we at an unprecedented pace

October 24th, 2012

Did you know an estimated 50% of all Wetlands were lost during the 20th Century!

I recently read, “The key role that rapidly diminishing wetlands play in supporting human life and biodiversity needs to be recognized and integrated into decision-making as a vital component of the transition to a resource-efficient, sustainable world economy.” – UNEP report

Here in Tokyo Bay, our flood plain has been pretty much covered over with concrete, its vitality and fluxing energy diverted and oppressed by embankments and expensive “risk-reduction” flood channels such as the ambitious G-Cans.  ” G-Cans project widely known as Tokyo underground flood tunnels is the networks of tunnels 6.4 kilometers (four miles) long built deep under the ground in the Tokyo suburbs. All this infrastructure is dedicated to prevent flooding when Tokyo metropolitan area rivers are overfilling during the rain seasons or in case of typhoons.”

For your pleasure, here’s the sexy Japanese G-Cans youtube promo, with lots of wizz-bang effects, funky synth music and animation sequences.

 

G-Cans is an incredible testament to our times, an era in which economists and engineers rule the world. Thank-you. However, whilst its all well and good to be safe and dry whilst living ignorantly on this flood plain, very rarely when walking along a Tokyo canal can we (me and the other 29 million Tokyo human inhabitants) enjoy the sound of a cricket or frog, or delight in seeing a northern migrating bird fishing for food. Yes, ‘sattvas, the Anthropocene is upon us.

Hmmm, I think given this mentioned 50% as well as recent Convention for Biodiversity COP11 decisions in Hyperbad, its important that we recognise the behaviour of our current socio-economic systems. They are not working for us. Its important that we start to actively oppose further wetlands development with community monitoring and stewardship, and book-ending these bottom-up efforts with UN top-down internationally recognized decisions like at COP11.

It made me start thinking back to this summer. Whilst studying in Munich, I learnt about an socio-ecological river restoration project that locals were backing. With the support of various municipality leaders, private enterprise and community groups, Munich was actually removing some the man-made channels that had been constructed along their Isar rivers over the last 200 years. It was bizarre to understand at first. But, locals explained, by breaking that barrier, the city was choosing to change the human-nature relationship and allow for natural rhythms and cycles of the river to emerge once again… regenerating the surrounding landscapes and connecting the locals with nature on a more respectful and equal footing.

Probably the shitty tourist photos don’t do the idea justice?  What I am getting at is this, quite frankly, we are blissfully still living out European rational concepts developed during industrial era that constantly seek to reduce risk by oppressing nature, ultimately to minimize any financial and infrastructure damages to business as usual.

What our forefathers did was replace our reverence for God and nature’s bounty with capital as king.

And, I’m not afraid to apply this notion to rapidly approaching Geo-enginneering climate projects as well. What will become of our biodiversity!

I’m not suggesting we don’t plan for disaster wisely. Hell no, climate change already a reality. Also, keeping in mind my friends who were devastated by the Brisbane floods,  I’m not suggesting we remove all disaster infrastructures in place. Instead, I think we need to incorporate other long term aspirations into these plans and address how we can live better with our river, its mood swings and all the other beings  we interrelated-ly steward . I am drawing attention to new models of thought emerging, where collective society are calling for a more humble relationship with nature. Collectives are questioning and changing approaches to development…to development locations, housing styles, realistic impact assessments, factoring ecosystem services. Projects like the Isar River are showing that we can (and  ultimately must) plan equally for the healthy functioning of our neighbourhood ecosystems… one that ultimately keeps us all healthy and alive. During my watch, I’m trying to focus on these things, as various ecosystem habitats disappear at an unprecedented pace.

 

Seriously, hug your wetland today. If you are not watching (or watching the TV instead), it might be gone tomorrow and then we are all screwed. For example, the Boondall Wetlands Reserve in Brisbane offers an insight to the flora and fauna of Moreton Bay, Australia. At the wetlands’ environment Centre you can learn about the importance of preserving natural areas. Enjoy a picnic, walk a trail, bike ride, explore the wetlands from canoe. Go wild, meet a bird, scare a crab, embrace the smell of mudflat micro-organisms.

Don’t you think its time to widen the definition of we?

 

45 Life lessons, written by a 90 year old

September 28th, 2012

Feeling a bit reflective on this September full moon …

45 Life Lessons, written by a 90 year old

1. Life isn’t fair, but it’s still good.

2. When in doubt, just take the next small step.

3. Life is too short not to enjoy it.

4. Your job won’t take care of you when you are sick. Your friends and family will.

5. Don’t buy stuff you don’t need.

6. You don’t have to win every argument. Stay true to yourself.

7. Cry with someone. It’s more healing than crying alone.

8. It’s OK to get angry with God. He can take it.

9. Save for things that matter.

10. When it comes to chocolate, resistance is futile.

11. Make peace with your past so it won’t screw up the present.

12. It’s OK to let your children see you cry.

13. Don’t compare your life to others. You have no idea what their journey is all about.

14. If a relationship has to be a secret, you shouldn’t be in it.

15. Everything can change in the blink of an eye… But don’t worry; God never blinks.

16. Take a deep breath. It calms the mind.

17. Get rid of anything that isn’t useful.  Clutter weighs you down in many ways.

18. Whatever doesn’t kill you really does make you stronger.

19. It’s never too late to be happy.  But it’s all up to you and no one else.

20. When it comes to going after what you love in life, don’t take no for an answer.

21. Burn the candles, use the nice sheets, wear the fancy lingerie. Don’t save it for a special occasion. Today is special.

22. Overprepare, then go with the flow.

23. Be eccentric now. Don’t wait for old age to wear purple.

24. The most important sex organ is the brain.

25. No one is in charge of your happiness but you.

26. Frame every so-called disaster with these words, ‘In five years, will this matter?’

27. Always choose Life.

28. Forgive but don’t forget.

29. What other people think of you is none of your business.

30. Time heals almost everything. Give Time time.

31. However good or bad a situation is, it will change.

32. Don’t take yourself so seriously. No one else does.

33. Believe in miracles.

34. God loves you because of who God is, not because of anything you did or didn’t do.

35. Don’t audit life. Show up and make the most of it now.

36. Growing old beats the alternative — dying young.

37. Your children get only one childhood.

38. All that truly matters in the end is that you loved.

39. Get outside every day. Miracles are waiting everywhere.

40. If we all threw our problems in a pile and saw everyone else’s, we’d
grab ours back.

41. Envy is a waste of time. Accept what you already have, not what you think you need.

42. The best is yet to come…

43. No matter how you feel, get up, dress up and show up.

44. Yield.

45. Life isn’t tied with a bow, but it’s still a gift.

courtesy of Regina Brett


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