Expanding Terra Nullius

In an essay challenging characterizations of Pacific nations as “small” and “isolated,” Epeli Hau‘ofa described precolonial Oceania as “a large world in which peoples and cultures moved and mingled, unhindered by boundaries of the kind erected much later by imperial powers” (1994, 154). Summoning the vision of an oceanic world in which the seas connected rather than separated people and cultures, movement was integral to life, and boundaries were negotiated points of entry rather than imaginary dividing lines, Hau‘ofa wrote that “the sea was open to anyone who could navigate a way through” (1994, 155), and he famously put forward a worldview radically different from the one Anglo-European colonialism violently imposed on Oceania, including ideas of territorial sovereignty, possessive individualism, and white supremacy (Mar 2016). It was through these ideological lenses that Oceania was seen not as a vast region of interconnected and vibrant cultures but rather as an isolated group of essentially empty islands suitable for use as prisons.

In this essay, I consider the Australian regime of imprisoning maritime refugees in “offshore” detention centers on Nauru and Manus Island, Papua New Guinea, as part of the ongoing imperial project of establishing white supremacy in Oceania. Though this project arguably began with the arrival of European explorers in the seventeenth century, it solidified into its contemporary form in 1770, when British naval Lieutenant James Cook landed on the east coast of the island continent now known as Australia and claimed possession of it on behalf of King George III. First as a British colony and then as an empire-building project of its own, “Australia” has always relied on and reproduced two racist fictions: terra nullius (empty land) and lawless sea. Terra nullius has rightly received significant academic attention, but I build on these discussions by considering how this racist legal fiction has always operated beyond the bounds of the land it treats as empty, expanding out into the sea. Specifically, terra nullius is connected to Australia’s hyperdefensive policies against nonwhite maritime migration and to its historical and ongoing exploitation of Manus and Nauru. I draw on Renisa Mawani’s work, which observes how the European philosophy of law assumed that juridico-political order is rooted in “firm land” while the “free sea” is a lawless void to be mastered in the service of territorial empire building (2019, 51–55).

Offshore Refugee Detention

Australia’s current offshore refugee detention regime was initiated in September 2001 in response to what is now known as “the Tampa affair.” The mv Tampa, a Norwegian container ship making its way to Singapore, had rescued 438 people from an overcrowded fishing boat that had been attempting the voyage from Indonesia to Australia. Almost all of the passengers were Hazara Afghani refugees. Although Australia was the closest port, the Australian government refused to allow the Tampa to dock. As the situation on board deteriorated, the Tampa captain feared some of the refugees were near death, so he defied Australian orders and entered its territorial waters. Australia responded by sending armed military officers to forcefully board the Tampa and prevent it from sailing further. As human rights lawyers in Melbourne filed emergency applications seeking orders that the refugees be brought to Australia, the Australian prime minister, John Howard, announced that he had reached an agreement with Papua New Guinea and Nauru for the refugees to be processed there. Thanking all governments involved, Howard declared, “This is a truly Pacific solution” (quoted in Federal Court of Australia 2001, sec 40). Still at sea, the refugees were transferred to Australian navy troopship hms Manoora, which began the sixteen-day voyage across the northern coast of the Australian continent, from the Indian Ocean, through the Timor Sea, and to its ultimate destination of Nauru, an eight-square-mile island nation in the central Pacific.

From its inception, the purpose of detaining refugees in locations that are off Australian shores has been to “stop the boats,” a slogan that has become a rallying cry on both sides of Australian electoral politics. Detention on Manus and Nauru is used as a spectacle of cruelty that will warn others not to attempt a maritime voyage to Australia. Punishment, containment, and deterrence of maritime refugees has been deemed appropriate in Australian political discourse because “boat people” are “queue jumpers”: lawless and slippery racialized figures who have participated in the criminal activity of people smuggling (see Gelber 2003). As Australian migration law has become increasingly securitized, refugees, many of whom are Muslim, are also legally constructed as potential terrorists.¹ Maritime refugees are categorized under Australia’s Migration Act 1958 as “unauthorised maritime arrivals” (previously “offshore entry persons”), meaning they become legally ineligible to apply for a visa (sec 46a). This post-2001 legislative scheme enables Australia to treat maritime refugees as if they had never reached Australian territory, despite the reality that they have (Motha 2018, 54). Transported offshore, the legislation renders maritime refugees permanently “at sea” and formally outside of Australian jurisdiction. The spatiality on which the regime relies is one in which Manus and Nauru are understood as harsh and isolated landmasses, separated from Australia and its superior legal system and society by a formidable expanse of treacherous, murky ocean.

The Australian government signed an agreement with Nauru while the Tampa was still at sea and with Papua New Guinea soon after that (Taylor 2005, 7). As has been noted, these agreements are exploitative of the unequal power relationship Australia has with many Pacific Island countries, which are dependent on it for imports, aid, and investment (Taylor 2005, 18–19; Opeskin and Ghezelbash 2016). Eighteen years later,² Nauru and Papua New Guinea remain financially dependent on Australia. Meanwhile, the operation of the detention centers has caused tensions within the local communities (Opeskin and Ghezelbash 2016). In much political discourse, Manus and Nauru have become synonymous with Australia’s offshore regime and its gross human rights violations. The regime has been roundly condemned by human rights organizations and found by the United Nations to be in breach of Australia’s obligations under the Convention Against Torture (unga 2015), and at least twelve refugees have died on Manus and Nauru, including one by self-immolation. While the abhorrent conditions for the refugees, the exploitative nature of the agreements, and the negative impact the situation has had on contemporary Manus and Nauru are beyond doubt, it is worth exploring the deeper political roots of the regime.

Empty Land, Lawless Sea

Though the concept of terra nullius has taken hold in Australian legal and political discourse, it was never formally declared by early colonists. From Cook’s first sighting of the continent, it was clear that the land was not empty. Rather, the British treated the land as unowned and ungoverned on the justificatory premise that Aboriginal people were racially inferior and thus incapable of ownership and self-government (Ritter 1996; Fitzmaurice 2016). Racialized thinking then became the foundation of legal reasoning and conclusion (Anghie 2018). British common law developed the analogous concept of colonial acquisition by settlement. As explained by the Privy Council in 1863, “Where Englishmen establish themselves in an uninhabited or barbarous country, they carry with them not only the laws, but the sovereignty of their own State” (Supreme Court at Calcutta 1863, 48). “Barbarous” countries were thus seen as legally equivalent to uninhabited ones, meaning British sovereignty could be asserted without the need for any agreement with Indigenous populations. While the 1992 case Mabo v Queensland (No 2) acknowledged for the first time in Australian common law that the land was not terra nullius when the British arrived, it upheld the legal fiction that Australian sovereignty was obtained through settlement (High Court of Australia 1992). Racism thus remains a foundational structure of Australian law.

As previously mentioned, the concept of terra nullius and the ways it has been used to legally justify the violent theft of Aboriginal land has rightly received extensive academic attention (Kerruish and Purdy 1998; Watson 2002; Wolfe 2006; Dorsett 2007). Less attention has been paid to how Australian settler colonialism also relied on a European imperial conceptualization not just of land but also of the ocean. Arguing for an oceanic method in the study of colonial history, Renisa Mawani highlighted the legal interdependence of land and sea (2016, 117), tracing how Hugo Grotius’s argument that there is an elemental difference between land and sea became foundational to European thought and international law (2019, 44). This distinction was selectively taken up, when it was in the interests of European imperial expansion, to construct the sea as a lawless void (Mawani 2019, 48–49). During the eighteenth and nineteenth centuries, British law came to treat the ship as a legal person, one who could transport British law with her through the high seas (Mawani 2019, 78–88). Britain’s oceanic legal regime was always racialized: while ships were legal persons, the enslaved Africans they carried across the Atlantic were not.

Building on Mawani’s reading of the importance of the land/sea distinction in European imperial thought and international law, I suggest here that alongside “empty land,” a conceptualization of “lawless seas” has always been crucial to Australian settler colonialism. An understanding of the ocean as a dangerous and ultimately lawless abyss separating land-based legal orders, only capable of regulation through the passage of ships, was a concept correlating to and supporting terra nullius. The land could only be considered empty if both the continent and its surrounding ocean—and the preceding maritime movement of people and goods in the region—were considered to be void of civilization. The establishment of New South Wales as a penal colony eighteen years after Cook’s landing relied on Australia being constructed as not only empty but also isolated. The voyage from England to Australia took three months in the late 1700s and was notoriously treacherous, the ocean being operationalized by colonial authorities as a dangerous void that would separate convicts from civilization (Maxwell-Stewart 2010, 1228). The idea that Australia was isolated, with civilization only arriving with British ships, entailed Eurocentric and racist assumptions that Oceania as a region lacked law and culture and that all other maritime movements were uncivilized and lawless.

Expanding Terra Nullius: Australia’s Colonization of Manus Island and Nauru

The foundational ideas of empty land and lawless sea have long been extended beyond Australia’s borders and to the surrounding oceanic area. In 1883, Queensland raised its flag in Port Moresby, attempting to annex New Guinea on the assumption that Papuans, like Aboriginal people in Queensland, had no rights to land or government of their own (Overlack 1979; Anghie 2018, 21). Following Germany’s defeat in World War I, the newly federated Australian government saw the negotiations at Versailles as an opportunity to claim control of the Pacific Islands previously under German colonial control (Storr 2018, 355; Anghie 2018). Australian Prime Minister Billy Hughes fought hard to annex the former German colonies of Nauru and northeastern New Guinea, resulting in the creation of the “c class mandate” in the system instituted by the newly established League of Nations to administer the occupied German and Ottoman territories (Storr 2018, 349; Anghie 2018). Using rhetoric similar to that used by colonial authorities to describe Aboriginal people in Australia, Hughes’s campaign for the c class mandate of the former German-controlled Pacific Islands and his insistence that they needed Australia’s “tutelage” in part relied on the belief that their Indigenous populations were at the “primitive stage of civilisation” and thus not capable of self-governance (Storr 2018, 361).

Nauru was a particularly lucrative possession for Australia because of its rich phosphate resources. Before the League of Nations mandate had even been formally conferred, Britain, Australia, and New Zealand drafted the Nauru Island Agreement 1919, which set up the British Phosphate Commissioners (bpc). The agreement established that the bpc was to consist of one commissioner for each of the three states, and that title to all Nauruan phosphate was vested in the bpc. Between 1919 and 1968, when Nauru became independent, the bpc mined thirty-four million tonnes of phosphate from the island (Gowdy and McDaniel 1999). Throughout this period, the bpc paid the Nauruans a low royalty, which the commissioners set based on what they deemed adequate to meet Nauruan needs (Islam 1992). The racist attitude affecting this assessment is reflected in the British Year Book of International Law 1923–24: “the remuneration is small, perhaps, in the eyes of a civilised man in view of the immense value of the product in the Commonwealth, but it is not small to a child of nature who lives on cocoa-nuts and fish and sunshine” (Charteris 1923, 137, 151).

The bpc’s devastating exploitation of Nauruan land for the direct benefit of the predominantly white populations of Australia, New Zealand, and Britain mirrors the racist logic applied on the Australian continent. Today, 90 percent of Nauruan land is mined out and the island is dependent on food imports. In 1989, Nauru launched an action against Australia in the International Court of Justice, the first ever case by a former dependent territory against its colonial authority for abuse of power (Anghie 1993, 446). The case settled in 1993, with Australia agreeing to pay Nauru a$107 million (us$65.9 million), to be paid in yearly instalments ending in 2013 (Commonwealth of Australia 1995). Although the settlement represents a legal victory for Nauru, it continued the island’s economic dependence on Australia, and its land remains unrehabilitated. When, in 2001, Australia approached several Pacific Island states to host refugee detention centers, Nauru was the first to agree (Parliament of Australia 2002).

While Nauru was lucrative to Australia first for its phosphate and second for its location far from its neighboring islands and even farther from Australia, Papua New Guinea, and Manus in particular, has always been utilized by Australia primarily for its strategic location. Manus was used as a military base by Australia during World War II, when it was bombed and briefly taken over by Japanese forces. When the war ended, some Australian parliamentarians wanted Manus to be taken under direct Australian and US control and developed into a military facility that would serve as a bastion between Australia and its enemies. Speaking against what they saw as too much international oversight of its activities on the island, conservative parliamentarians revealed their perception of Manus as an empty island in a lawless sea. One described Manus as “that worthless base, that barren island to the north of New Guinea” (Commonwealth of Australia 1949, 291), while another described it as “like a shag on a rock, right, out on its own,” with no other use than as a military base for Australia (Commonwealth of Australia 1950, 334).³

When the Dutch East Indies came to a close, the western part of New Guinea, which had been under its administration, became subject to a military occupation by Indonesia in 1962, involving mass violence against Indigenous West Papuans, some of whom crossed the border into Australian-controlled Papua New Guinea. Not wanting to disturb its diplomatic relationship with Indonesia, Australia sent these refugees to Manus Island, where they would be far from media attention or potential political support (Neumann 2015, 196–197). When Australia opened its refugee detention center at the Manus Island Lombrum Naval Patrol Boat Base on 11 October 2001, it was thus continuing its use of Manus as both an island on which to isolate refugees and a defensive base against those considered a threat to national security.

In 2016, a PNG Supreme Court decision found that the detention of refugees at the Lombrum center on Manus was contrary to the right to personal liberty guaranteed in the PNG constitution and ordered it be shut down (Supreme Court of Papua New Guinea 2016). Despite this decision, the center remained in operation until November 2017, when the detainees were forcibly removed to another site on the island, where they were guarded and subject to curfews (Davidson 2019). It appears that the Australian imperative to keep the refugees on Manus has been prioritized over the PNG court’s directive that they be released. The 2018 announcement that the Lombrum site is to be developed into a joint Australian-US naval base is the fulfillment of the desires of 1950s Australian conservative mps (Murphy 2018), its life as a refugee detention center having served as a stopgap during which Australian and Papua New Guinean jurisdiction on the island became increasingly blurred. Australia’s long-held imperial ambitions are being met as the region is shaped according to its racist priorities.

Conclusion

Behrouz Boochani, a writer and maritime refugee detained on Manus Island since 2013, recalled that prior to their transportation to Manus, Australian officials told the refugees that Manusians are cannibals (2018, 83; see also Kaiku, this issue; Dalsgaard and Otto, this issue). The story, intended to frighten the refugees into returning to their countries of origin, is indicative of Australia’s continued construction of Papua New Guinean and Nauruan people as racially inferior, their isolated island homes only useful as prisons. Though Australia’s offshore regime formally places refugees outside of Australian law, it effectively expands Australian jurisdiction beyond its territorial borders to encompass Nauru and Manus Island. Like the original arrival of British law in Australia, this oceanic expansion of Australian law is reliant on the notion that the Indigenous peoples of Oceania are inferior, that the seas that connect them are lawless, and that their lands are harsh, hellish places of isolation, best used as prisons. The structural racism of terra nullius on which Australia rests does not end at its territorial bounds but rather extends out into the surrounding oceans and islands, imposing a white supremacist landscape of confinement not only on maritime refugees but also on Indigenous Oceanians.