Julie Evans, ‘Where Lawlessness Is Law: The Settler-Colonial Frontier As a Legal Space of Violence ‘, Australian Feminist Law Journal 30 (2009), 3-22.

Part of the introduction:

In understanding international law as a key legitimating discourse of colonialism, this paper argues the need to view settler-colonial frontiers within a conceptual field that directs as much attention to the legal and historical precedents to settlement as to the period that follows it. The discussion addresses some recent concerns of Australian frontier historiography by calling on critical legal-historical scholarship that theorises the mutual constitution of law and nation as a reiterative dynamic in which seemingly universal claims persistently champion particular interests. It identifies some constraints of the literature’s nationalist preoccupations and seeks to articulate a way forward from stultifying debates about frontier violence that are inevitably drawn into divisive questions of national identity.

In extending the scope of inquiry to Europe’s expansion to the Americas, the analysis considers both the notion and the actuality of the frontier to explain its pivotal role as a threshold space between international law and domestic law, two apparently distinct jurisdictions, which, both jointly and severally, had to secure the transfer and transformation of sovereignty as European nations sought to establish their interests abroad. This broader legal and historical framework acknowledges the fact that settler frontiers did not arise autochthonously within each colony, which is simply to say that frontiers did not originate where they were variously made. Rather, the notion of the frontier was produced as a potent residue of international law’s responsiveness to colonialism, as a necessary complement to Europe’s initial claims to sovereignty under the so-called doctrine of discovery. For in order to defend a first discoverer’s claim to sovereignty against European rivals, the sovereignty of natives – already discursively denied in international law – had also to be transferred through their physical dispossession within the (emerging) field of domestic law. This task of completion – in acquiring the territorial dimension of sovereignty – in turn produced the actuality of the frontier in the form of the lived experiences of its various inhabitants post settlement. Bringing the notion and the actuality of the settler-colonial frontier within the one analytical field therefore recognizes and makes manifest the legal, temporal, and spatial gap between a discursive claim to sovereignty and its full expression in territorial hegemony.