Justice Brennan And Terra Nullius
Justice Brennan summarised the international law in these words:
'International law recognised conquest, cession and occupation of territory that was terra nullius as three of the effective ways of acquiring sovereignty. No other way is presently relevant. The great voyages of European discovery opened to European nations the prospect of occupying new and valuable territories that were already inhabited. As among themselves, the European nations parcelled out the territories newly discovered to the sovereigns of the respective discoverers, provided the discovery was confirmed by occupation and provided the indigenous inhabitants were not organised in a society that was united permanently for political action. To these territories the European colonial nations applied the doctrines relating to acquisition of territory that was terra nullius. They recognised the sovereignty of the respective European nations over the territory of "backward peoples" and, by State practice, permitted the acquisition of sovereignty of such territory by occupation rather than by conquest.'
'International law recognised conquest, cession and occupation of territory that was terra nullius as three of the effective ways of acquiring sovereignty. No other way is presently relevant. The great voyages of European discovery opened to European nations the prospect of occupying new and valuable territories that were already inhabited. As among themselves, the European nations parcelled out the territories newly discovered to the sovereigns of the respective discoverers, provided the discovery was confirmed by occupation and provided the indigenous inhabitants were not organised in a society that was united permanently for political action. To these territories the European colonial nations applied the doctrines relating to acquisition of territory that was terra nullius. They recognised the sovereignty of the respective European nations over the territory of "backward peoples" and, by State practice, permitted the acquisition of sovereignty of such territory by occupation rather than by conquest.'
Keywords: Brennan, Justice Gerard, Canberra, Common Law, conquest, High Court judgement, International law, sovereignty, terra nullius, 1992
(1992) 175 CLR 1 at 32-33Author: Nettheim, Garth
Source: Brennan, Justice
Source: Brennan, Justice