Illegal Occupation, Colonialism and The Doctrine Of Discovery

Today, many indigenous nations (people) whose sacred lands and rivers were occupied and taken away from them centuries ago lament that they have lost the culture, language and customs that should have gone to posterity if their ancestors were left alone.

by Dr. Ruwantissa Abeyratne

Writing from Montreal

Emer Vattel (1714-1767), popularly known as the father of international law, in his book The Law of Nations, says: “ The domain of the nation (nation in international law means people and not a country) extends to everything she possesses by a just title: it comprehends her ancient and original possessions and all her acquisitions made by means which are just in themselves, or admitted as such among nations.”

Illegal land occupation

This mid eighteenth century statement does not accord with the act of someone marching into land occupied by another and taking over, which is illegal occupation. In the fifteenth century onwards until the twentieth century this was called colonialism where a country which had more power than a people who occupied a certain land forcibly took over that land and controlled it. In North America indigenous people, who had rightful ownership and possession of their land are relentlessly arguing against the arbitrary take over by Christopher Columbus in 1492 when his Spanish-based transatlantic maritime expedition stumbled upon America while on an expedition meant for elsewhere. The justification for this nation-grab was based on an arbitrary edict issued post facto in 1493 by Pope Alexander the Sixth in what was called a Papal Bull which granted to the Catholic Monarchs Ferdinand and Isabella of Spain “all lands to the "west and south" of a pole-to-pole line 100 leagues west and south of any of the islands of the Azores or the Cape Verde islands”. This was followed by another decree by the Pope in 1494 which allocated the West to the Spanish and the East to the Portuguese by the demarcation of a median dividing the East and the west. This explains why most in South America speak Spanish and why the occupation in the sixteenth century by the Portuguese of Ceylon (as Sri Lanka was then) and areas elsewhere such as Macau and Goa still bear remnants of a Portuguese occupation.

This trend is explained by Professor Robert Miller et.al in their book Discovering Indigenous Lands. The authors posit that: “North America, New Zealand, and Australia were colonised by England under an international legal principle that is known today as the doctrine of discovery. When Europeans set out to explore and exploit new lands in the fifteenth through to the twentieth centuries, they justified their sovereign and property claims over these territories and the Indigenous peoples with the discovery doctrine”.

They continue: “This legal principle was justified by religious and ethnocentric ideas of European and Christian superiority over the other cultures, religions, and races of the world. The doctrine provided that newly-arrived Europeans automatically acquired property rights in the lands of Indigenous peoples and gained political and commercial rights over the inhabitants. The English colonial governments and colonists in North America, New Zealand, and Australia all utilised this doctrine, and still use it today to assert legal rights to Indigenous lands and to assert control over Indigenous peoples”.

The Doctrine of Discovery

The doctrine of discovery was first introduced by Chief Justice Marshall of the United States Supreme Court in the 1823 case of Johnson v. McIntosh. Chief justice Marshall upheld the right of defendant McIntosh’s right of ownership of land purchased from the federal government, on the ground that the federal government owned and controlled the land taken from indigenous people who had only a “right of occupancy” with no title to the land. The reasoning of the Chief Justice was the “Discovery Doctrine,” which, according to the Chief Justice, vested colonial powers with absolute ownership and control to newly discovered land. Simply put, title to the land vested with the person who “discovered” the land, irrespective of who occupied the land at the point of “discovery”.

There were certain elements that went toward establishing the discovery doctrine. The first was that ownership of land vested on the person or power that “first discovered the land”. The second was that there should be actual occupancy of the land so “discovered”. The third was that such discovery should grant pre-emptive title to Europeans who came first. Fourthly, native title was granted to the discoverer to the exclusion of the natives who were already occupying the land at the point of the said “discovery”. The fifth was “contiguity” which determined the extent of the land “taken over”. The sixth, which is arguably the most atrocious and egregious, was conquest, implying the use of force. This was conditional upon a “just war” whatever that meant. The seventh was that Christianity and the spread thereof across the oceans was a justified reason for taking over foreign lands. The eighth was “civilization”, whatever that meant at the time of the Johnson decision, and the interpretation given to the word by Chief Justice Marshall.

In the earlier 1831 decision of Cherokee Nation v. Georgia Justice Marshall opined that although the Cherokee, and other tribes, were distinct societies and separate politically, they were still under the control of the United States. It must also be mentioned that The United States Congress in 1787 had enacted the North West Ordinance which stated that there should be no land grab unless the land was taken in a “just” war.

To conclude with Vattel, who wrote more than a century before the judicial decisions cited above: “As everything included in the country belongs to the nation- and is none but the nation, or the person on whom she has devolved her right, is authorized to dispose of those things – if she has left uncultivated and desert places in the country, no person whatever has a right to take possession of them without her consent. Though she does not actually make use of them, those places still belong to her. She has an interest in preserving them for future use, and is not accountable to any person for the manner in which she makes use of her property”. Today, many indigenous nations (people) whose sacred lands and rivers were occupied and taken away from them centuries ago lament that they have lost the culture, language and customs that should have gone to posterity if their ancestors were left alone.

In the modern context it must be mentioned that in 2016 the United Nations Security Council adopted Resolution 2334 regarding the Israeli settlements in "Palestinian territories occupied since 1967, including East Jerusalem". The Resolutions states that Israel's settlement activity constitutes a "flagrant violation" of international law and has "no legal validity" and demands that Israel stop such activity and fulfill its obligations as an occupying power under existing international treaties.

This is one of many such resolutions and hopefully, it will not be the last.