Terra nullius (/ /, plural terrae nullius) is a Latin expression meaning "nobody's land". It was a principle sometimes used in international law to justify claims that territory may be acquired by a state's occupation of it.[a]
Many scholars have noted the similarity between the terra nullius principle and the Roman law term res nullius, meaning nobody's thing. In Roman law, res nullius, or things without owners, such as wild animals (ferae bestiae), lost slaves and abandoned buildings could be taken as property by anyone by seizure. Therefore, some scholars have argued that terra nullius stems from res nullius, but others disagree and claim that the derivation is "by analogy" only.[b]
A part of the debate over the history of terra nullius is when the term itself was first used. According to historian of ideas Andrew Fitzmaurice, territorium nullius and terra nullius were two different, albeit related, legal terms. He claims that territorium nullius was first used in a meeting of the Institut de Droit International in 1888 where the legal principles of the Berlin conference were discussed and that terra nullius was introduced twenty years later during legal disputes over the polar regions. Historian M. Connor on the other hand, argues that territorium nullius and terra nullius are the same thing. Both scholars are active in the Australian "history wars" debate.
There is considerable debate among historians about how and when the terra nullius concepts were used. The debate has been especially prevalent in Australia where it was ignited by the history wars caused by the Mabo case in 1992, a landmark decision which decided in favour of native title in Australia and was a pivotal moment in the history of indigenous land rights in Australia. The history wars caused Australian historians to reevaluate the country's history, the dispossession of Aboriginal Australians and whether the land should best be characterised as having been "settled" or "conquered". A part of this debate was over whether terra nullius was ever used by England and other European powers to justify territorial conquest.[c]
Sociologist Robert van Krieken wrote:
- As such, the 'rejection of terra nullius' is arguably more about Australian history and moral community than Australian jurisprudence. It also had the rather perverse effect, in the subsequent public debate around the decision, of diverting our attention from the fact that there were strong reasons of law to recognise native title, and made the High Court far more vulnerable to the criticism of 'excessive judicial activism' than the substance of the case itself demanded.
On one side of the debate are historians such as Alan Frost and Henry Reynolds who claim that in the 15th and 16th century, European writers adopted the res nullius concept for territorial conquest. Frost writes:
- By the mid–eighteenth century, the theoretical basis of a new convention of acquiring empire had emerged. If a European state (a Christian Prince) had already established an effective possession of a region, another might acquire title to it only by formal cession (which might or might not involve outright purchase). If the region was not already possessed by a rival, then a state might acquire it in one of three ways, viz.:
- – by persuading the indigenous inhabitants to submit themselves to its overlordship;
- – by purchasing from those inhabitants the right to settle part or parts of it;
- – by unilateral possession, on the basis of first discovery and effective occupation.
Historians debate whether "first discovery and effective occupation" was applied to territory inhabited by indigenous peoples that European colonial powers sought to acquire or not. According to Frost:
- However, if the indigenes had advanced beyond the state of nature only so far as to have developed language and the community of the family, but no further; if they had not yet mixed their labour with the earth in any permanent way; or if the region were literally uninhabited, then Europeans considered it to be terra nullius (i.e., belonging to no one), to which they might gain permanent title by first discovery and effective occupation.
On the other side of the debate are historians which claim that terra nullius is a much younger concept, which did not become formalized before the end of the 19th century. Historian M. Borch writes:
- When the wealth of material relevant to this issue is surveyed it seems much more likely that there was no legal doctrine maintaining that inhabited land could be regarded as ownerless, nor was this the basis of official policy, in the eighteenth century or before. Rather it seems to have developed as a legal theory in the nineteenth century.
These historians claim instead that territorial conquest was justified from natural law – that which has no owner can be taken by the first taker. Michael Connor in his book The Invention of Terra Nullius takes an even more extreme view and argues that no one in the 19th century thought of Australia as being terra nullius. He calls the concept a legal fiction, a straw man developed in the late 20th century:
- By the time of Mabo in 1992, terra nullius was the only explanation for the British settlement of Australia. Historians, more interested in politics than archives, misled the legal profession into believing that a phrase no one had heard of a few years before was the very basis of our statehood, and Reynolds' version of our history, especially The Law of the Land, underpinned the Mabo judges' decision-making.
Current claims of terra nullius
While several countries have made claims to parts of Antarctica in the first half of the 20th century, the remainder, including most of Marie Byrd Land (the portion east from 150°W to 90°W), has not been claimed by any sovereign state. Signatories to the Antarctic Treaty of 1959 agreed not to make such claims, except the Soviet Union and the United States, who reserved the right to make a claim.
Bir Tawil is an example of a territory often claimed to be terra nullius.[d] Between Egypt and the Sudan is the 2,060 km2 (800 sq mi) landlocked territory of Bir Tawil, which was created by a discrepancy between borders drawn in 1899 and 1902. One border placed Bir Tawil under the Sudan's control and the Hala'ib Triangle under Egypt's; the other border did the reverse. Each country asserts the border that would give it the much larger Hala'ib Triangle, to the east, which is adjacent to the Red Sea, with the side effect that Bir Tawil is unclaimed by either country. The area is, however, under the de facto control of Egypt, although it is not shown on official Egyptian maps. Bir Tawil has no settled population, but the land is used by Bedouins who roam the area.[d]
Gornja Siga and other pockets
Serbia and Croatia dispute several small areas on the east bank of the Danube. However, some pockets on the west bank, of which Gornja Siga is the largest, are not claimed by either country. Croatia states the pockets are Serbian, while Serbia makes no claims on the land.
On 13 April 2015, Vít Jedlička from the Czech Party of Free Citizens proclaimed the right-libertarian micronation of Liberland on Gornja Siga. Shortly after Liberland, another micronation project, the Kingdom of Enclava, was declared, eventually claiming part of the second largest pocket as their territory. The Croatian Ministry of Foreign and European Affairs has rejected these claims, stating that the differing border claims between Serbia and Croatia do not involve terra nullius, and are not subject to occupation by a third party. The Serbian Ministry of Foreign Affairs stated on 24 April 2015 that while Serbia considers "Liberland" to be a frivolous matter, it does not impinge upon the Serbian border, which is delineated by the Danube River.
Historical claims of terra nullius
Several territories have been claimed to be terra nullius. In a minority of those claims, international and domestic courts have ruled on whether the territory is or was terra nullius or not.
Joseph Trutch, the first Lieutenant Governor of British Columbia, insisted that First Nations had never owned land, and thus their land claims could safely be ignored. It is for this reason that most of British Columbia remains unceded land.
In Guerin v. The Queen, a Canadian Supreme Court decision of 1984 on aboriginal rights, the Court stated that the government has a fiduciary duty toward the First Nations of Canada and established aboriginal title to be a sui generis right. Since then there has been a more complicated debate and a general narrowing of the definition of "fiduciary duty".
The sovereignty of Clipperton Island was settled by arbitration between France and Mexico. King Victor Emmanuel III of Italy rendered a decision in 1931 that "'the sovereignty of Clipperton Island belongs to France from the date of November 17, 1858.' The Mexican claim was rejected for lack of proof of prior Spanish discovery and, in any event, no effective occupation by Mexico before 1858, when the island was therefore territorium nullius, and the French occupation then was sufficient and legally continuing."
The Guano Islands Act of 18 August 1856 enabled citizens of the U.S. to take possession of islands containing guano deposits. The islands can be located anywhere, so long as they are not occupied and not within the jurisdiction of other governments. It also empowers the President of the United States to use the military to protect such interests, and establishes the criminal jurisdiction of the United States.
Patagonia was according to some considerations regarded a terra nullius in the 19th century. This notion ignored the Spanish Crown's recognition of indigenous Mapuche sovereignty and is considered by scholars Nahuelpán and Antimil to have set the stage for an era of Chilean "republican colonialism".
Aboriginal peoples inhabited Australia for over 50,000 years before European settlement, which commenced in 1788, but Indigenous customs, rituals and laws were unwritten. It was formally claimed by the settlers that Australia was terra nullius at the time of settlement. This is also described as a "doctrine of discovery".
In 1971, in the controversial Northern Territory Supreme Court case of Milirrpum v Nabalco Pty Ltd, popularly known as the Gove land rights case, Justice Richard Blackburn ruled that Australia had been considered "desert and uncultivated" (a term which included territory in which resided "uncivilised inhabitants in a primitive state of society") before European settlement, and therefore, by the law that applied at the time, open to be claimed by right of occupancy, and that there was no such thing as native title in Australian law. The concept of terra nullius was not considered in this case, however. Court cases in 1977, 1979, and 1982, brought by or on behalf of Aboriginal activists, challenged Australian sovereignty on the grounds that terra nullius had been improperly applied, therefore Aboriginal sovereignty should still be regarded as being intact. The courts rejected these cases, but the Australian High Court left the door open for a reassessment of whether the continent should be considered "settled" or "conquered".
In 1982, Eddie Mabo and four other Torres Strait Islander people from Mer (Murray Island) started legal proceedings to establish their traditional land ownership. This led to Mabo v Queensland (No 1). In 1992, after ten years of hearings before the Queensland Supreme Court and the High Court of Australia, the latter court found in Mabo v Queensland (No 2) ("the Mabo case") that the Mer people had owned their land prior to annexation by the colony of Queensland (1872–1879). The ruling thus had far-reaching significance for the land claims of all Indigenous Australians (both Torres Strait Islanders and Aboriginal Australians).
Burkina Faso and Niger
A narrow strip of land adjacent to two territorial markers along the Burkina Faso–Niger border was claimed by neither country until the International Court of Justice settled a more extensive territorial dispute in 2013. The former unclaimed territory was awarded to Niger.
Norway occupied and claimed parts of (then uninhabited) eastern Greenland in 1931, claiming that it constituted terra nullius and calling the territory Erik the Red's Land. The Permanent Court of International Justice ruled against the Norwegian claim. The Norwegians accepted the ruling and withdrew their claim.
One of the few micronations to control a physical location, the Principality of Sealand has existed de facto since 1967 on an abandoned British anti-aircraft gun tower in the North Sea. At the point when it was taken over, the tower had been abandoned by the Royal Navy and was outside British territorial waters. Paddy Roy Bates, who styled himself Prince, claimed that it was terra nullius. Despite rejecting this claim on the basis that the tower is an artificial structure, the British government has never attempted to evict the Sealanders, and a court in 1968 confirmed that at that point, the tower was outside British jurisdiction.
Scotland, Great Britain, the Dutch Republic, and Denmark–Norway all claimed sovereignty over the archipelago of Svalbard in the seventeenth century, but none permanently occupied it. Expeditions from each of these polities visited Svalbard principally during the summer for whaling, with the first two sending a few wintering parties in the 1620s and 1630s.
- The issue would have been simpler if Spitzbergen, until now terra nullius, could have been attributed to a single state, for reasons of neighbouring or earlier occupation. But this is not the case and several powers can, for different reasons, make their claims to this territory which still has no master.
Pinnacle Islands (Senkaku/Diaoyu Islands)
A disputed archipelago in the East China Sea, the uninhabited Senkaku Islands, were claimed by Japan to have become part of its territory as terra nullius in January 1895, following the Japanese victory in the First Sino-Japanese War. However, this interpretation is not accepted by the People's Republic of China (PRC) and the Republic of China (Taiwan), both of whom claim sovereignty over the islands.
Scarborough Shoal (South China Sea)
The People's Republic of China and the Philippines both claim the Scarborough Shoal or Panatag Shoal or Huangyan Island (黄岩岛), nearest to the island of Luzon, located in the South China Sea. The Philippines claims it under the principles of terra nullius and EEZ (exclusive economic zone). China's claim refers to its discovery in the 13th century by Chinese fishermen (the former Nationalist government on the Chinese mainland had also claimed this territory after the founding of the Republic of China in 1911). However, despite China's position of non-participation in an UNCLOS case, in 2016, the Permanent Court of Arbitration (PCA) denied the lawfulness of China's "nine-dash line" claim.
Despite this, China continues to build artificial islands in the South China Sea, and Scarborough Shoal is a prime location for another one. Chinese ships have been seen in the vicinity of the shoal. Analysis of photos has concluded that the ships lack dredging equipment and therefore represent no imminent threat of reclamation work.
South Island of New Zealand
In 1840, Lieutenant William Hobson, following instructions from his government, pronounced the southern island of New Zealand to be terra nullius, and therefore fit for settlement by European settlers. Hobson's decision was also influenced by a small party of French settlers heading towards Akaroa on Banks Peninsula to settle in 1840.
At the request of Morocco, the International Court of Justice in 1975 addressed whether Western Sahara was terra nullius at the time of Spanish colonization in 1885. The court found in its advisory opinion that Western Sahara was not terra nullius at that time.
Limits of national jurisdiction and sovereignty
View the following chart as if it was a "cross-section" of the earth, stretching from underground to outer space.
- Discovery doctrine
- Aboriginal title
- Allodial title
- Antarctic Treaty System
- Frontier thesis
- Indigenous land rights
- International Court of Justice Advisory Opinion on Western Sahara, 1975
- International Waters
- Land claim
- Manifest destiny
- Neutral territory
- No man's land
- Res nullius (original and broader formulation in law)
- Space colonization
- Extraterrestrial real estate
- Space law
- Common heritage of mankind
- Uncontacted people
- Even as to terra nullius, like a volcanic island, or territory abandoned by its former sovereign, a claimant by right as against all others has more to do than planting a flag or rearing a monument. From the 19th century the most generous settled view has been that discovery accompanied by symbolic acts give no more than "an inchoate title, an option, as against other states, to consolidate the first steps by proceeding to effective occupation within a reasonable time." — U.S. Supreme Court (1998) New Jersey v. New York
- Contrary to the view of some historians, our analysis will show that res nullius was a concept with firm foundation in Roman legal sources, but terra nullius was merely derived from the Roman concept of res nullius by analogy. — Benton & Strauman (2010) p 1: 1
- Debates have arisen among historians about whether the term should be used to characterize rationals for late eighteenth-century and early nineteenth century imperial expansion, when the term itself was rarely – if ever – cited before the late nineteenth century. — Benton & Strauman (2010) p 6: 6
- There is some disagreement of whether Bir Tawil is terra nullius or not. For example, see the news and analysis of Jeremiah Heaton’s 2014 flag-planting in Bir Tawil, in an effort to make his daughter, Emily, a “princess” at Wash. Post, Opinio Juris, and KDVR Denver.
Klotz, Frank G. (June 1998). America on the Ice: Antarctic policy issues. DIANE Publishing. p. 3. ISBN 978-0-7881-7048-5.
Antarctica was what international lawyers refers to as terra nullius – literally, “nobody’s land”.
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