Publikationer

Research | Forskning - peer review

This paper examines the legal concept of occupation of territory and its historic application to the Polar regions, to disclose the fallacies at the heart of the colonial projects at both Poles. It also considers how the increasing recognition of non-use value disrupts positivist accounts of occupat… This paper examines the legal concept of occupation of territory and its historic application to the Polar regions, to disclose the fallacies at the heart of the colonial projects at both Poles. It also considers how the increasing recognition of non-use value disrupts positivist accounts of occupation. The colonisation of populated lands was justified by European theories of property that insisted that effective occupation required both a psychological and a physical element. The psychological element of occupation requires the sovereign to engage in a legal action that it controls the land and exercises dominion over it but this conceit is not shared by Arctic Indigenous Peoples. The physical element of occupation according to the positivist account requires an owner or sovereign to transform the land in some physical manner. The self-serving European legal theories construed the Indigenous relationship with land as a non-relationship and declared it retrospectively terra nullius. According to their own laws, the colonisers declared their own sovereign authority over Indigenous territories, notwithstanding the existing civilisations. However, in the Polar regions, the colonisers themselves did very little in the way of physical occupation or transformation of the vast majority of the lands that they claimed. Colonisers demonstrated occupation through the naming of places, mapping, taking resources, building basic structures for shelter, and applying laws over their own people. But Indigenous Peoples had long been doing all those things in the Arctic. 20th century courts accepted that in territories remote from the colonising claimant with little or no population, the degree of physical occupation and exercise of jurisdiction could be very limited. However, they refused to consider the much longer and more extensive use and management by Indigenous Peoples. In the Antarctic, the territorial claims of the seven claimant states do not pivot on any real physical occupation or transformation of the land at all. This would have been impossible on any scale of significance, given the size and challenging climate of the continent at the time of European discovery. Today, the principles that govern the Antarctic continent favour non-use and a minimisation of impacts. At both Poles, justifications for the exercise of jurisdiction are increasingly based on promises to protect wilderness by minimising human impacts. Sovereignty is demonstrated through non-occupation in a complete reversal of the classical legal theory. Læs mere

Research | Forskning - peer review

This article discusses the history of international law in respect of colonisation, from Francisco de Vitoria to the present day. It reveals the inconsistencies and injustices with regard to Indigenous Peoples that continue to constrain their rights to self-determination today on an equal basis with… This article discusses the history of international law in respect of colonisation, from Francisco de Vitoria to the present day. It reveals the inconsistencies and injustices with regard to Indigenous Peoples that continue to constrain their rights to self-determination today on an equal basis with other Peoples. By deconstructing the legal explanations for the occupations of the polar regions, it demonstrates the contradictions at the heart of the colonial project and challenges international lawyers, in particular “positivist” international lawyers, to re-evaluate their hypotheses regarding occupation and state sovereignty. It highlights the gaps between the theory and practice of occupation of the polar regions and questions the legitimacy of states’ territorial claims. Instead, it shows that Indigenous occupation in the Arctic is much older and legally stronger than that of any state. Læs mere