This chapter examines the contextual elements of article 2(4) of the UN Charter and the requirement that a prohibited ‘threat or use of force’ be in ‘international relations’. It analyses the meaning of this term and whether it requires that the object of a prohibited use of force be another State and draws conclusions about the types of acts that fall within and outside the scope of this term (and thus the scope of article 2(4)). The type of acts discussed include use of force on another State’s territory or against its extraterritorial sovereign manifestations, to reclaim disputed territory not within de facto control, those in violation of international demarcation lines, those directly arising from a political dispute between States, use of force by a State within its own territory against its own population, in the exercise of law enforcement jurisdiction against private foreign actors, against entities falling short of Statehood, those with no nexus to another State (such as against an international organisation or on terra nullius) and the use of force within a State’s own territory against small-scale incursion by another State’s armed forces.

Australian novels of recent decades, canonical and lesser-known works, created by both Indigenous and non-indigenous writers, have been telling stories the nation and its readers have not wanted to hear for most of Australia’s colonial history. While novelists did engage, prior to the 1980s, with Indigenous presence on the continent, such engagement was sporadic and mostly peripheral to grander stories of pioneering bravado, white achievement and the battle with nature on the frontier. Now, peripheral stories have moved to the centre, for Australia was not an empty land settled peacefully by the British. The land was already occupied by sovereign nations of people. Storied, sung place was invaded with orchestrated violence; the land was taken, not ‘taken up’. Indigenous peoples now demand that their ‘ancient sovereignty’ be allowed to ‘shine through as a fuller expression of Australia’s nationhood’ via constitutional amendment and treaty. Read against the backdrop of relatively recent developments – land rights, the Mabo decision, Stolen Generations, History Wars – this chapter examines work by non-indigenous authors like Kate Grenville and Andrew McGahan as well as Indigenous writers such as Alexis Wright and Tara June Winch, in tracing the rise of the postcolonial novel in Australian fiction.

Writing by migrant authors constitutes the bulk of Australian literature, yet more often than not ‘migrant writing’ is used as a de facto label to indicate writing by non-anglophone authors. A further distinction is made with refugee writing, which is treated as a discrete subcategory within the larger field of migrant experience. This chapter restores migrant status to that of Australian settler writing, highlighting the ways in which Australian settler identity is formed through the repression of its migrant origins. It locates this impulse to distance settler identity from migrancy in the founding doctrine of terra nullius (used to justify the British colonisation of Australia), suggesting that this might be considered as a collective trauma, a mechanism that erased not only the country’s Aboriginal history but also its migrant past. Through a comparative analysis of works by Aboriginal authors Claire G. Coleman and Alexis Wright, migrant writers J. M. Coetzee and Felicity Castagna, and the refugee journalist and autobiographer, Behrouz Boochani, this chapter demonstrates the extent to which Australia has been invented by migrants and the migrant experience.

What are the physical limits of state sovereignty? This chapter reviews international law concerning the territorial sovereignty of states, including on the land, the oceans, and the air and space above.  Specific legal instruments that govern these areas are examined in some depth, including the Chicago Air Convention of 1944 and the United Nations Convention on the Law of the Sea (UNCLOS).  Six methods of obtaining sovereign territory are discussed along with vivid examples of each.  The struggle to allow fair use by states and companies over the resources in and below the high seas and outer space is highlighted.  The new space race may prevent the original space treaties’ vision of a new frontier that is devoid of commercialization and militarization.

This chapter explores the understanding of nature reflected in the international legal classification of territory, as reflected in the doctrines of terra nullius, res communis and the common heritage of mankind. It provides an overview and analysis of each of these concepts, noting the frequently problematic role they have played in legitimating the exercise of political and economic power. It then analyses the continuities and discontinuities between these categories. It argues that, despite surface changes, a narrow instrumental view of nature and the environment continues to be deeply embedded in much of our current thinking about jurisdiction over territory, and can be seen as constituting one of the ongoing barriers to thinking about the environment in more innovative and sustainable ways.

This chapter will explore why and how First Nations people still have to reckon with the myriad settler and Australian legal histories that have shaped their lives and histories since colonisation. I argue that we still need to reckon with law because settler law denied Aboriginal land title and continues to deny Aboriginal sovereignty. Tracing settler laws’ complicity with the colonial project, this chapter first examines how the fantasy of terra nullius was instantiated through laws which enabled the expropriation of Aboriginal and Torres Strait Islander peoples’ lands and waters. It then examines how First Nations people have been unduly affected by separate, discriminatory settler laws which governed almost all facets of their lives. Yet, Australia’s legal system to redress these injustices, constitutes new and evolving chapters in the nation’s legal history.

This chapter explores the legal history of dispossession in the nineteenth century. It argues, first, that the failure to sign a treaty with Aboriginal and Torres Strait Islander peoples for land in Australia was a significant act of dispossession. While there was no declaration that Australia was ‘terra nullius’ in 1788, the failure to treat has been wielded since to dispossess Aboriginal and Torres Strait Islander people of land rights and sovereignty. The chapter then explores dispossession through the legal history of expansion – the mixture of legality and lawlessness that fed the pastoral boom in Australia after 1824. With the advent of self-government, Australian legislation facilitating the breaking up of some pastoral leases into fee simple farms from 1861 effected a more complete dispossession by closing Country to Indigenous Australians. These varied processes of dispossession by tenure were fed by acts and omissions of jurisdiction. For many decades, Aboriginal people were not protected by settler law because their legal status was unclear. The designation of Aboriginal and Torres Strait Islander people as subjects of the British crown after 1836 resulted in an uneven mix of hyper-policing and under-policing.

Captain Cook claimed possession for the British Crown of what he called ‘New South Wales’ at Possession Island, Cape York (now Queensland) on 22 August 1770. British colonisation of Aboriginal lands, then a part of the European colonisation of the continent, began in January 1788.

How and when did Australia begin? One version of the country’s origins – a version taught to generations of school children and set down in literature and art, memorials and anniversaries – would have it that Australian history commenced at the end of the eighteenth century. By the end of the twentieth century it was no longer possible to maintain the fiction of Australia as terra nullius, a land that until its settlement in 1788 lacked human habitation, law, government or history. The growing recognition of this vastly extended Australian history spoke to late-twentieth-century sensibility. It revealed social organisation, ecological practices, languages, art forms and spiritual beliefs of great antiquity and richness. The second version of Australian history, the one that begins not at 1788 in the Western calendar but 50,000 years or more before the present, is at once more controversial, more rapidly changing and more compelling.

I argue that imperial agents treated legal concepts as a resource rather than a script for claiming possession of overseas territories, and did so in order to make vague claims to legitimacy vis-à-vis their imperial rivals rather than make strictly legal claims. I have found no evidence to suggest that James Cook claimed possession of New Holland on the grounds of terra nullius, res nullius or occupation. It is more likely that Cook relied upon two other legal concepts: discovery and possessio. Cook’s claim-making was primarily done with a European audience in mind rather than a local one, that it was concerned with staking a preliminary claim, and that his claim-making did not determine how questions about sovereignty or title in land were to be treated later. We need to focus on the sequence of events that began with the encounters between Cook’s party and the Aboriginal people, and the perceptions that Cook and Banks subsequently formed of the natives. After the colony was planted, the British government never saw any need to negotiate with the local people for cession of sovereignty or the purchase of land because it was relatively well-armed and encountered no powerful rival sources of power.