The Doctrine of Occupation and the Founding of Australia

There is certainly nothing surprising in the thesis that many legal doctrines, however complex or sophisticated they could be, are quite often difficult to apply directly. This problem occurs both in domestic and in international law. Traditionally considered modes of acquiring the territory of a state, mostly derived by modern scholars from Roman private law, make for a good example of this problem. It rarely happens that any of them provides a complete answer to the question of how a state acquired its legal title to a certain portion of land, especially when the title is contested. Scholars tend to emphasise that the modes of acquisition typified in textbooks of international law do not exactly reflect the complex process that occurs when a tribunal or an arbitrator has to adjudicate between competing claims. Yet, particularly where no dispute occurs, there are certain situations when some of the modes of acquiring state territory appear in pure form. Such is the case of Australia and the creation of a legal title to the vast territory of this continent by Great Britain. The goal of this paper is therefore to look at the beginnings of Australia through the prism of the doctrine of occupation, which has found direct application in this case.