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A Sydney academic has only added to the confusion with his inaccurate entry in the history war debate, writes Michael Connor
IN "Evidence tailored to fit an argument" (HES, March 15), University of Sydney academic Andrew Fitzmaurice challenged my book The Invention of Terra Nullius. Fitzmaurice had three main criticisms. First, that I have misunderstood, and misused, the terms territorium nullius and terra nullius. Second, that in my use of an International Court of Justice advisory opinion I have been guilty of a distortion of history. Third, that I failed to find the first usage of the term terra nullius, which he claims to have discovered.
Of these charges, the first especially is a serious accusation, Fitzmaurice charging me with fabrication and word substitution.
Not guilty. Territorium nullius and terra nullius are the same thing. My discussion of terra nullius begins with international lawyers in Lausanne in the 1880s working out concepts of what they called territorium nullius. I point out this use of language and as I proceed I treat this as terra nullius.
Fitzmaurice objects. He claims these phrases are very different in meaning.
In Fitzmaurice's analysis, "Territorium nullius was coined in 1886 to codify rules for the carve-up of Africa. The very different contexts lent the respective terms different meanings, not the least of which is that one refers to territory (a political entity) and the other to land (a material entity). Territorium nullius describes an absence of sovereignty whereas terra nullius describes an absence of property." Is he correct? Are territorium nullius and terra nullius different concepts? No, they are not, they mean the same thing and Fitzmaurice points to no international law text to support his inventiveness. The law cases he uses, which he thinks support his argument, deal with sovereignty.
Legal writers Elizabeth Evatt and Mark Lindley both wrote texts (much used in discussions of terra nullius) in which they used the term territorium nullius to discuss sovereignty. Justice Gerard Brennan in Mabo, and Henry Reynolds in his books, rightly interpreted this as terra nullius.
Likewise, associate professor Bain Attwood, who noted that Lindley was "the author of an oft-quoted text on the subject [terra nullius]", then cited a page that used the words territorium nullius, as Lindley...