Classical International Law’s Position on Indigenous Land Rights – The Terra Nullius Doctrine

2.1 Generally on the Terra Nullius Doctrine

It is generally submitted that the seed to the international legal system we know today was planted in Europe in the post-Westphalian era. Resting heav-ily on its constitutional principle – that of state sovereignty – the international legal order that now took form not only supported colonization of indigenous lands, but was actually created for the precise purpose of facilitating and legal-izing European control over foreign territories.3 The European realms unilater-ally declared, as was their sovereign right to do, that under international law indigenous peoples – due to the very nature of their societies – lack capacity to hold rights over land. In other words, the European sovereigns declared

indig-3 W Kymlicka, ‘Beyond the Indigenous/Minority Dichotomy?’, in S Allen and A Xanthaki (eds.), Reflections on the UN Declaration on the Rights of Indigenous Peoples (Hart Publish-ing, 2011) 183; J Crawford and M Koskenniemi, International Law (Cambridge University Press, 2012) 15; G Simpson, ‘International law in diplomatic history’, in Crawford and Ko-skenniemi, ibid. 27.

enous territories terra nullius, i.e although factually inhabited, empty for legal and political purposes.4

The terra nullius doctrine has two elements. The fijirst relates to a popula-tion’s capacity to hold political, or sovereign, rights over a territory, the second to its capability of establishing private rights to land. Here, it is the second element that is relevant. It professes that to establish private rights over land, one must improve on, or add value, to it. British philosopher John Locke is often associated with this line of thought. According to him, uncultivated land cannot constitute property. Man must transform such land into valuable and productive property in order to claim rights thereto. Concepts such as ‘uncul-tivated’, ‘improve upon’, and ‘add value to’ are, however, clearly not terms of art. They are culturally relative, i.e. they only acquire meaning in a particular cultural context. Proponents of the terra nullius doctrine were, however, ig-norant to this fact. Locke held that only such lands had been improved upon, and thus constituted property, that were used for European style agrarian prac-tices. Lands used in other, less ‘civilised’ (i.e. non-European) manners were, by defijinition, ‘uncultivated’, and their inhabitants as a consequence uncivilized, incapable of holding rights.5

In summary, the European realms invoked the principle of sovereignty to proclaim the terra nullius doctrine law. Putting the norm they had thus cre-ated into action, they subsequently unilaterally determined that indigenous peoples could hold no rights to land as their land uses were ‘uncivilized’, i.e.

not sufffijiciently ‘European’. One can say that international law of the era pro-fessed a ‘dynamic of diffference’ to justify denying indigenous peoples rights over land.6

4 While terra nullius with time became the term for a legally and politically empty terri-tory, Andrew Fitmaurice points to that initially the term was employed to describe ter-ritories that were not only politically, but in fact literally, uninhabited, most often in a Polar context. See A Fitzmaurice, ‘Discovery, Conquest, and Occupation of Territory’, in B Fassbender and A Peters (eds.), The Oxford Handbook of the History of International Law (2012) 9-11. Still, since terra nullius seemingly is the general term of choice, this chapter will employ it as well.

5 J Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge University Press, 1995) 72; L Obregón Tarazona, ‘The Civilized and the Uncivilized’, in Fassbender and Peters (n 4) 2, 7; Fitzmaurice (n 4) 8; J Gilbert, Indigenous Peoples’ Land Rights under Inter-national Law (TransInter-national Publishers, 2007) 3, 24-26; P Fitzpatrick, ‘Terminal Legality:

Imperialism and the (De)composition of Law’, in D E Kirby and C Coleborne (eds.), Law, History Colonialism, The Reach of Empire (Manchester University Press, 2001) 14.

6 A Anghie, ‘Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law’ [1999] Harvard International Law Journal 40 24-28.

2.2 Further on the ‘Dynamic of Diffference’

More specifijically, the ‘dynamic of diffference’ argument consisted of two main elements.

First, generally speaking, indigenous cultures aspire to leave few marks on lands used. Clearly, this feature of indigenous cultures sits badly with the Lock-ean understanding of value-adding. As seen, John Locke and his contemporary scholars (and sovereigns) defijined valuable land – and thus property – in terms of European style agrarian lands. In other words, improving on the land was – by defijinition – an exercise of substantially altering the land compared with its natural state. Through their practices, indigenous peoples had, on their part, in the minds of the Europeans not altered the land in any legally relevant manner.

That indigenous peoples treasured the land in its natural stage lacked impor-tance. As mentioned, Locke and his colleagues were blind to cultural relativ-ism in that sense.

As to the second part of the ‘dynamic of diffference’ formula, indigenous cultures normally orient around the collective, rather than around individual members of the group, in manners western cultures, generally speaking, are alien to.7 Thus, indigenous lands and natural resources are commonly com-munally used, and lands and natural resources are also perceived to vest with the collective,8 insofar the people think of lands in terms of rights at all. Also this aspect of indigenous land uses squares badly with the Western/European idea of land uses and rights. As Western/European cultures are more individ-ual-centric, rights to land are largely perceived to vest with individuals, or at least with identifijiable groups thereof.9 As a consequence, when the Europeans observed indigenous communal land uses and failed to associate particular in-digenous individuals with particular land areas, it, in their view, allowed them to infer that no private rights attached to the land.

To conclude, the method used for maintaining that indigenous land uses can per se not result in private rights to land was one of diffferentiation be-tween cultures. The European sovereigns took upon themselves to unilaterally

7 S Von Lewinski, International Copyright Law and Policy (Oxford University Press, 2008) 528.

8 J Gibson, Community Resources (Ashgate Publishing, 2005) 15-19, 29-30, 104.

9 Some might question this assertion with reference to commons. Still, it would appear incorrect to refer to commons as recognition of collective property rights over territories.

Rather, commons can probably, generally speaking, be better described as areas to which no private title apply. With regard to commons see, generally, B H Weston and D Bollier, Green Governance; Ecological Survival, Human Rights, and the Law of the Commons (2014);

P Linebaugh, The Magna Carta Manifesto (UC Press, 2009).

declare that international law provides that their way of using land results in property rights, while land uses not sufffijiciently similar to their own practices, common to indigenous cultures, do not.

3 Rejection of the Terra Nullius Doctrine