Beyond “terra nullius”
Written by: Andrew Fitzmaurice
Occupation and Empire
The law of occupation—a concept popular since Roman times—offers a finders-keepers approach to claiming property. Andrew Fitzmaurice, the author of Sovereignty, Property and Empire, 1500–2000, explores the historical concepts of occupation and ownership to expose the injustices of empire.
A central principle of modern European laws concerning property, extracted from Roman law, was that anything that belonged to nobody would become the property of the first person to take it. Sovereignty, Property and Empire, 1500–2000 examines the history of that argument, known as the law of occupation. The idea of occupation was the most important justification for modern European empires. Non-European peoples were said to have no property or no sovereignty, or lacked both, and this justified the occupation of their land or the domination of their political systems. Over hundreds of years and in vastly diverse circumstances, European empires generated highly complex discussions of what occupation could mean, to what and where it could be applied. Since decolonisation in the 1950s and 60s, such laws became redundant and were largely lost to historical memory. In their place, we came to use one term in particular – namely, ‘terra nullius’ – if we were to speak of such matters at all.
By the 1980s and 90s it was apparent that many peoples, such as the Indigenous peoples of North America, Australia and New Zealand, had been left behind by decolonisation and remained in a state of having been occupied. They remained, that is, in a state whereby they were perceived to inhabit a void in terms of property and sovereignty. In order to address this state, historians and courts began to use the term ‘terra nullius’ to describe and oppose the perception of a void.
The historical arguments used to justify the perception that certain things belonged to nobody were vastly more complex than the so-called doctrine of terra nullius
It became increasingly obvious to me as I began researching this question in the late 1990s and early 2000s that the historical arguments used to justify the perception that certain things belonged to nobody were vastly more complex than the so-called doctrine of terra nullius. Moreover, it was also apparent that European discourse on the justice of empire was far more fragmented than historians and post-colonial theorists believed. Discussions of occupation were frequently denials of the rights of Europeans to colonise rather than justifications of such ventures. I believed that if we really wanted to understand the historical and legal predicament of contemporary Indigenous peoples, we first needed to bring back into consciousness the multiple historical concepts of occupation. Doing this would enable us to understand exactly what things, for example, Europeans perceived to belong to nobody. It would provide us with a far greater understanding of the justice, or rather the injustice, of colonisation and empire.
Just to take one example: arguments of occupation sometimes addressed questions of property, sometimes sovereignty, and that emphasis changed over time with different empires according to their objectives. Recovering these multiple uses of occupation is important not only for our understanding of the past but also the present since the perception that certain things are void of ownership remains central to various global and national questions. Such perceptions prevail not only in the persistent legal challenges of former settler societies. They can be found in a great diversity of contemporary problems, for example, in political conflicts in Israel and Palestine; in the question of property in Outer Space; in the regulation of hyper-space; and in new arguments about ownership of the Poles. Moreover, it is said that we live in a time in which the concept of empire has once again become central to an understanding of global politics. This is one of the reasons that the study of empire has seen a great resurgence in recent years. This revival of empire, on both the political and intellectual scales, makes it all the more necessary to understand the legal armoury that empires inherit from the past.
Because this book covers a great expanse of time and is global in scope, the timing of its publication can be usefully compared with the release of Jo Guldi and David Armitage’s History Manifesto also by CUP. Guldi and Armitage call for histories that employ longer term perspectives. I strongly endorse Guldi and Armitage’s argument that historians should address themselves to the higher stakes of historical research. Whether we should be concerned with five hundred year time frames, as I am in this book, is another matter. It takes a very long time to write contextual histories when we frame them in terms of long time-periods. In the long run, as John Maynard Keynes said, we are all dead. I’m not dead, but I was certainly a much younger man when I started this book. The question, therefore, is whether we can more effectively address ourselves to the higher stakes of our research without spending years mastering great expanses of history in time and space. I believe that is possible. As Hamlet observed: “I could be bounded in a nut shell and count myself a king of infinite space”. Why then did I write this book that not only covers five hundred years of empire but reaches back into medieval and Roman law, as well as discussing events that cover most of the globe?
There are certain historical questions, and in particular certain ideas, with which a perspective over a long time period reveals a complex interplay of continuity and discontinuity. In particular, many concepts that come to us from Roman law tend to have very long and complex histories, including freedom, sovereignty, citizenship, and occupation. While it is important to understand those histories in an episodic manner, it is also only possible to grasp the full diversity of certain concepts when those ideas are considered over great periods of time. In the case of occupation, we can only understand how limited recent understandings of this idea have become when we appreciate the great diversity of its history. Our ability to embrace that diversity in the past is surely connected to our ability to imagine a greater diversity of possible futures.