I. The Sudanese Quarters
terra nullius – Origin. Mid 19th century: Latin, literally “land belonging to no one,” from terra, earth, and nullius, genitive of nullus, no one.
There are spaces outside memory that belong to no-one or to nature, and there are places cast out of memory and returned to nature or to no-one. Across them there is an order, an order that brings together in time the ground, the territory, the space, the place, the land, the soil. This order – or nomos – was set out by Carl Schmitt, German jurist of the Nazi era and theorist of the laws of war and co-existence in The Nomos of the Earth. Of the nomos Schmitt wrote, “The originally terrestrial world was altered in the Age of Discovery, when the Earth first was encompassed and measured by the global consciousness of European peoples. This resulted in the first nomos of the Earth.”
The first nomos of the Earth, the jus publicum Europaeum (European constitutional law), encompassed the entirety of the spatial order of “firm land” and “free seas.” The nomos unified “the soil of European states, and the soil of overseas possessions, the colonial lands.” It is only within the nomos that the terra nullius takes its questionable place.
It took two centuries with variations across the New World, but this process of “nomizing” can be read through John Locke, the philosopher of the Enlightenment and “father of Liberalism.” Locke was one of a handful of men who both created and governed the colony that covered the land between what is today called the States of Florida and Virginia through their investments in the Royal African Company and the trade of African slaves. This government led to Locke’s participation in the writing of The Fundamental Constitution of the Carolinas in 1668. Whilst recognizing the native with natural rights, at the core of Locke’s writing, his treatises of Civil Government, was the means by which the colonial settler through “the labour of his body and the work of his hands” could convert land, underused land as vacuum domicilium, into property. And so bring it into European civil law. A process by which political antagonisms specific to colonial settlement produced the paradox of universal yet exclusive constitutions, the first as “self evident” in Philadelphia, July 4, 1776 and then in Europe at the Bastille, Paris, 1793.
II. The Ethiopian Church
It is through terra nullius and the colony that what is called the modern State found its constitution and legal ground. The first edition of the authoritative The Principles of International Law (1885) by Thomas Joseph Lawrence said: “For a State to become a subject of international law, it must attain a certain, or rather uncertain amount of civilisation and possess a fixed territory. Accordingly a territory is terra nullius if it does not meet these criteria and is therefore an object and not a subject of international law.”
Measures of civilization made the claim of terra nullius and the nomos of the Earth through a right and a duty to civilize. In 1884 Jules Ferry, the French statesman (whose name the ground here bears) declared before his peers in parliament:
“Gentlemen, we must speak more loudly and more honestly! We must say openly that indeed the higher races have a right over the lower races… I repeat, that the superior races have a right because they have a duty. They have the duty to civilize the inferior races…”
Once all territory was brought under the domain of the nomos the question into the new century was of the peoples, now considered, as it was put in the terminology of the 1919 Covenant of the League of Nations, “peoples not yet being able to stand for themselves.” Article 22 of the Covenant laid out measures of civilizational criteria, in effect separating peoples into classes of the civilized, semi-civilized, and uncivilized. These are the Class A, Class B, Class C classifications of the Mandate era that determined their governance. As the Pan African Congress, which took place in London in 1923 declared, without a “birth certificate” for a standard of civilization, self-determination and human rights protection could not be accommodated by the internal structures of international law at the centre of which was the colony.
III. The Main Street of the Colony
The colony, wrote Schmitt, is “the basic spatial fact of hitherto existing European international law,” its “foundation” and “basis” as a way of articulating what is yet to come. The impending birth of new statehoods whereby the soil of colonial possession would become the same as European soil meant the end of the nomos of the Earth and the start of a new spatial era. This, Schmitt suggested, had already begun with “the last great act of a common European international law,” the Berlin Congo conference of 1885. It was the Berlin conference that led to the “scramble for Africa” and which brought out the new “Great Powers” – an emergent America that lies outside of Europe, yet representative of European civilization and of a greater Reich. Schmitt reconciled these in a doctrine of greater spaces or pan-regions, the Grossraum or “Great space.” This he considered to be a new order whose scope was perfectly summarized by the full title of his essay: “The Grossraum Order of International Law with a Ban on Intervention for Spatially Foreign Powers: A Contribution to the Concept of Reich in International Law.”
The Grossraum was to be a new chapter of an international law that had broken out of the confines of the single state and unshackle Europe from the ideological burden of the colony. As the 20th century’s greatest critic of liberalism, the Grossraum was the means to define a bounded territory of homogeneous peoples or demos against a “spaceless universalism” of pluralisms ruled by a liberal economic hegemony. It was a concrete spatial order not based on the founding act of land appropriation but on the settlement of mutually co-existing great powers, each of which was federally constituted.
IV. The Afghan Restaurant by the Lakeside
By the measure of this new chapter in international law, in effect the postcolonial spatial order came with the promise from the nomos that there would no more territory to appropriate, no further terra nullius. In practice, however, from the start the postcolonial order was but a political enclosure between an universalism of new imperialisms and assorted Grossraums of identifiable powers – an European union, China, Russia, and so on. In this bounded post-colonial world, the making of space whereby “all space, whether actual and material or conceptual and metaphoric, is produced by war,” as in Schmitt’s axiom, has its contradictions and fallout. In the new schemas of just war, causi bellum on colonial soil, the language now is of “territorial integrity” and sovereignty (even to the extent that affirmation of territorial integrity is a prerequisite for either an invasion or humanitarian intervention). But the war for spatial ordering (for “Raumordnungskrieg” as Schmitt phrased it) can now produce space only within itself as a spatial formation outside the law – as the space of exception. This is space where the new order can place things it can no longer address juridically: the fallout of unwanted humans, unwanted memories. Black holes in the spatial order yet black holes through which a vast counterflow of humans now stake a claim by the concrete act of escape.
It is through these black holes that we can see how the order of the nomos is turned upside down. In the Grossraum of today, the great space of the greater Europe, the claim to the ground has contracted to native right, to the claims of blood and soil made by a resurgent Far Right. The claim of the Others, the undocumented who dwell in spaces of exception outside of the law, is made only through the black holes of natural right, a postcolonial terra nullius that re-emerges out of history as a necessary political conception. It manifests in the ever-multiplying colonies of the undocumented humans who are without the political capacity of constitution, but who arise out of the fundamental separation of rights from the colonies in the Age of Discoveries.
V. The Edge of the Colony
It is this that schematizes the ground of this writing. Jules Ferry at Calais.
A desolate empty space with tell-tale signs of prior human life, the ley lines of the colony that was here, the Jungle. And that is what it was, a colony in a terra nullius of Others clinging onto the surface of land, without foundation. A terra nullius of the territorially ungrounded as refugees and migrants. But the Jungle has been cleared away; put out of reach of claim and memory and the ground returned to the restorative powers of Nature. Jungle as a colony had exposed the co-existence of two territories, two projects parallel to each other.
We can walk between them to see how they are differentiated, by memory – or rather by the production of memory. Calais ville is a realm of memory to the heroism of a colonial age, to the heroism of the spatial revolution “that seemed endless to the Europeans who swarmed out to those distant expanses,” as Schmitt wrote in the Land and the Sea (1942). A site of continual re-memorialization, fresh flowers for monuments to colonial conquest, along with new monuments to De Gaulle and Churchill in the Parc Richeleu. Larger than life. The ground at Jules Ferry is the shadow part of the same realm – the heroism of the unwanted who have also crossed the seas. Here is a site of continual erasure, eradication of memory, eradication of place; the removal of every human trace.
These are parallel projects, each as unrelenting as the other, that emerge out of the nomos of the Earth into one of collective memory and collective amnesia. They are endless projects that produce monuments – just as they produce carceral archipelagos and unmarked cemeteries in the seas.
VI. The Epicentre of the Colony
To return to the mound once at the heart of the Jungle is to look out to a horizon still framed by silver razor wire fence behind which articulated trucks glide silently. We would climb up onto this mound from the mini-Somalia, the Belgian kitchen with the Container camp behind us. But this now an empty space of freshly turned soil, a Martian landscape that no past writing prepares us for.
But in its own way the emptiness takes us to a space of revelation that clarifies the ground upon which we all stand today; the legal fiction that the entirety of the contemporary world came to be built upon: terra nullius. However, the terra nullius here is of a history that unfolds through the bodies of the humans it left out, one that now re-emerges in a colony of Others – a colony that came out of the colony that wrote the Constitution from which came the State. That was the order in the chain of the nomos. It was the order this colony contradicted by its conjoining of European and colonial soil, in its inability to keep them separate.
Thus the old nomos has reasserted itself on a ground named rightly after Jules Ferry. But from the high mound on a frosty windless morning I could see the chain of the nomos unfolding through the capacity of the humans excluded to constitute their own place anew. And so produce a new order, a new unity of space and law. Only by that means can the ground then evolve to become nomos anew.
Siraj Izhar is an activist and artist involved in multiple social contexts. He writes frequently and is based in London.
