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

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.

Indigenous Australia

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.

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