WAS THE COLONISATION OF AUSTRALIA AN INVASION OF SOVEREIGN TERRITORY?

This article presents a reassessment of the British colonisation of Australia from the internal perspective of the international law of the period. After a discussion of the value of using historical doctrine in this way, the article introduces three positions that might be taken on the peoples who...

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Bibliographic Details
Published in:Melbourne journal of international law Vol. 20; no. 2; pp. 1 - 37
Main Author: Son, Rowan Nichol
Format: Journal Article
Language:English
Published: Melbourne Melbourne Journal of International Law, Inc 01.12.2019
Copyright Agency Limited (Distributor)
Subjects:
19th century
Acquisition of territory
Genocide
History
Human rights
International law
Laws, regulations and rules
Native people's land claims
Native peoples
Sovereignty
Western Sahara
Netherlands
Cameroon
United Kingdom > UK
Nigeria
Australia
Russia
Tasmania Australia
ISSN:1444-8602, 1444-8610
Online Access:Get full text
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Summary:This article presents a reassessment of the British colonisation of Australia from the internal perspective of the international law of the period. After a discussion of the value of using historical doctrine in this way, the article introduces three positions that might be taken on the peoples who were perceived as the least 'civilised' by Western international lawyers. These have not always been distinguished in the literature. The 'preclusive' position, according to which these peoples were incapable of sovereignty, is rejected as inconsistent with state practice. Although it does not prove feasible to eliminate either of the other two possibilities, the 'naturalist-legislative' and 'contractual' positions, they lead to similar results. On this basis it is concluded, not with complete certainty but with a high degree of confidence, that before colonisation the Aboriginal and Torres Strait Islander peoples of Australia were sovereign within their territories in the strict sense of international law. It is also concluded that describing colonisation as an 'invasion' of sovereign territory accords with the doctrinal language of the period. In these respects, historical international law, despite being shaped by and in the interests of Western colonisers, agrees with language used today by Aboriginal and Torres Strait Islander peoples. In the course of this reassessment, the article offers insights of broader application into the role of customary norms and the legal status of pre-colonial non-Western entities.
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ISSN:1444-8602
1444-8610