"Terra Nullius" as a justification for colonization outside of North America and Australia - Shaira Busnawi
In "The Settler Contract," Carole Pateman questions the legitimacy of modern states. Pateman discusses that political theory and the law of nations use the justification of terra nullius to legitimatize a state's occupancy and right to the land. Pateman describes terra nullius as "territory that is empty, vacant, deserted, uninhabited..." (36). Land that is terra nullius, therefore, belongs to no one and is uncultivated. There are two justifications for terra nullius. First, the right of husbandry. This means that any land that is uncultivated is open for use. The second is that the inhabitants in terra nullius land had no sovereign government and therefore, were in a state of nature.
However, Pateman argues that terra nullius was used as a form of justification for colonization by North America and Australia. She states that "when colonists are planted in terra nullius... the aim is not merely to dominate, govern, and use but to create a civil society" (38). Colonists used the concept of terra nullius to unjustly establish new states through force and domination over the colonized. Terra nullius as a justification for colonization provided the foundations of the settler contract. The settler contract is like the social contract in which it replaces the state of nature with civil society, however, unlike the social contract, the settler contract is enforced by methods of colonialism.
Pateman states that the settler contract can either be founded with no cognizance of the "history and institutions of the state of nature" or it can recognize pre-existing social orders as "forms appropriate to a civil society" (40). Under the latter, Pateman's tempered logic of the settler contract, aspects of the state of nature can only be recognized within the boundaries of the settlers' civil society. For example, the Native Americans and their government can be acknowledged in the settlers' civil society, but only because it is appropriate within the state. Pateman argues that this recognition of these aspects, however, raises the question of the legitimacy of the establishment of modern states. She states that "the very fact that Native Peoples and their governments are recognized means that the question of the legitimacy of the settlers' creation of a civil society always remains in the background."
Pateman briefly discusses appeals to the idea of terra nullius outside of the two New Worlds in the cases of Morocco and Western Sahara and Israel and Palestine. Western Sahara was a former Spanish colony until 1975, when the ICJ released its advisory opinion that Western Sahara was not terra nullius. Following this opinion release, Spain ceded and "Morocco took over its territory and has continued its occupation and repression ever since" (40). Although the Sahrawi Arab Democratic Republic (SADR) claimed sovereignty over the region, Morocco continues to view Western Sahara as part of its territory and sovereignty due to historical and ethnic ties. To this day, the territory remains occupied by Morocco. I believe that in this case, Morocco uses terra nullius to justify its occupation in Western Sahara. Morocco can justify their sovereignty over Western Sahara as a form of legitimate territorial acquisition because Spain had ceded the territory to them, which follows the justification of terra nullius that "if one power had already occupied a territory then another could take possession only if the first was willing to cede it" (44).
In the case of Israel and Palestine, Pateman explicitly writes that the former prime minister of Israel, Golda Meir, justifies the existence of Israel using terra nullius. Golda Meir states that "there was no such thing as Palestinians... they did not exist" (40). This statement shows that those who use terra nullius as a justification for territorial acquisition often deny and overlook the identities of the individuals inhabiting the territory. This supports Pateman's main argument that terra nullius as a justification for colonization is illegitimate.
Hey Shaira, I enjoyed reading your blog post, it was a great summary, and the examples were spot on. I wanted to add to your post on "justifications" by discussing and questioning the "right of conquest."
ReplyDeleteThe right of conquest started with the Spaniards, who were under the authority of "five Papal Bulls," which is a letter of permission from a pope of the Catholic Church. When it came to the voyaging of the Spaniards, their main purpose was the idea of "discovery/discovering." When it came to "discovering" a piece of land, Grotius states that it is not only casting one's vision on it but also "taking real possession" of it, which he believes turns into justifiable sovereignty (41). Australia adopted the definition but manifested it into a broader meaning, which ended in eliminating/disregarding indigenous folks' existence on their land. But, my focus is on the justification of the right to conquest in Australia and America with the aid of the military to use "extensive violence to overcome the resistance of Native peoples and drive them off their land" (42).
The legitimacy of using cruel violence stemmed from Grotius's idea of the state of nature and its laws of nature. More specifically, Locke titled the "very strange Doctrine" the natural right to punish others. This "collective agreement" of the natural right, as Grotius saw it was one formed before the state; it was agreed upon by "private persons" (Pateman). However, I argue if private interest within the "state of nature" constructed this "natural law," should it still apply to the modern state? My thoughts are that such "agreement" of inflicting extensive violence on others was because there was no security within the state of nature, but since it now exists, why hold on to these vulnerable acts of "self-defense?"
Hi Luis! I wanted to look into your questions further. First, it is important to understand the distinction in opinions of justification regarding settler colonialism. The settler colonists’ justification stems from John Locke’s logic of people having the ability to punish others in order to protect self-preservation in the state of nature; in their eyes, this thus, to them, allowed for violence as means to protect themselves against Native resistance. I would argue that Pateman, by arguing that this doctrine was agreed by “private persons” would agree that the settler colonists’ logic is unjust. She writes that “legitimacy followed conquest (42). The settler colonists’ justification, in my opinion, was convenient. If this private interest was justified not before colonialism started, and as Sharia pointed out, that terra nullius overlooks the types of societies and governments that occupied native lands before and ignored them, I would be more inclined to believe that perhaps it should not apply to the modern state. This is especially in the case that these acts of “self-defense,” seemingly done in the state of nature, were continued after. Violence against Native Americans did not stop with the initial transition from the “state of nature” in “unoccupied land,” but continued well into the modern centuries.
ReplyDeleteI was also interested in the distinction between civil society and the state of nature in the particular situation of the Mayflower Compact. Although the United States was less restrictive than other cases, such as Australia, they still used the same means to implement their ends. However, in the case of the Mayflower Compact, the governing document was made while the settlers were on the ship, not after they had arrived on land. They thus removed themselves from civil society in Europe, entered the state of nature while on the ship, and then entered civil society again by creating their own governing document while still overseas. How would their justification of violence based on the state of nature apply in this case?
Shaira and Luis,
ReplyDeleteThe point Luis makes at the end of the blog is very important. The European nations, although living outside of the state of nature, seem to use the state nature as a defense for their cruel violence against the Native population. After looking back at the text, I found one way that Grotius used to defend these actions. According to Grotius, "war can legitimately be waged against those who breach the law of nature" (43). Even if this violation doesn't have any impact on the people in Europe, they still have the right to punish violations of the rules of the state of nature. This justification means that the Europeans had to assume that the Natives were "savages" and were living so much like beasts that they were violating how human beings should interact. Even still, it is such strange logic that people living in civil society, and presumably outside of the state of nature, still have the ability to come back into the state of nature and punish people who are going wrong.
Shaira, I think you make a great point about Morocco. This example helps me visualize how the idea of terra nullius can be used to justify actions even after the period of European imperialism. The idea of sovereignty also strikes me in Shaira's description and the reading. As I heard in the podcast, This Land, the idea of sovereignty is something that we take for granted but it is so powerful. It reminds me of the idea that I have read about in comparative political theory of a monopoly of legitimate violence as the way to determine sovereignty.