영미법계 각국 법원의 무주지(terra nullius) 관련 판례법 원칙의 역사적 전개에 관한 일고찰

• 영문명: A Perspective on the Historical Developments of Case Law Principles Related to Terra Nullius in Courts in the Common Law Jurisdictions
• 발행기관: 충북대학교 법학연구소
• 저자명: 강병근(Kang Pyoung Keun)
• 간행물 정보: 『법학연구』第31卷 第2號, 41~80쪽, 전체 40쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2020.12.30

영문 초록

Although international lawyers are very familiar with the concept of occupation as one of the modes of territorial acquisition by sovereign states, it is not easy for them to pinpoint the nature of such concept. When the Christian states in the Western Europe rushed in for the competition of expanding their territories through colonization, they thought that they had a right to acquire newly discovered territories because those lands belonged to no other foreign states, that is, terra nullius. However, there were natives occupying those lands well before the European settlement, Many courts in the jurisdictions influenced by the English common law decided that such natives did not have proprietary and possessory rights in land. In 1823, the U.S. Federal Supreme Court differentiated the law of the nations and the law applicable to the Indians in the North America. The Court characterized the Indian title to land as usufructuary to the effect that it burdened the British Crown land. In 1888, the Privy Council of the British Empire decided that the effects of the Indian titles to land continued until the lands of the native Indians were transferred by cession or sale to the Government of Canada. In 1992, the highest court of Australia slightly changed its attitudes towards the common law principles on terra nullius by deciding that its prior decisions as to the land title of the natives were no longer sustainable because of their discriminatory and racial nature. The underlying concept of terra nullius still lingers on in judgments by the courts in Canada. In 2014, the highest court of Canada reaffirmed their long line of decisions reflecting jurisprudence of the English common law developed by the British Empire. The World knows that there are no such thing as terra nullius. However, the colonialism arising out of the concept of terra nullius still haunts in the states whose territories were based on the lands of native occupants.

목차

I. 서론

II. 미국의 Johnson v. M’Intosh 사건

III. 영국의 남로디지아 사건

IV. 캐나다의 St. Catherine s 사건

V. 호주의 Mabo 사건

VI. 캐나다의 칠코틴 인디안 사건

VII. 결론

키워드

무주지 선점 토지권 원주민 식민지 terra nullius occupation land rights natives colony