International law term meaning territory that has never been the subject of a sovereign state

Terra nullius (, plural terrae nullius) is a Latin expression meaning "nobody's land".[1] 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][3]

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.[4][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.[5] Historian M. Connor on the other hand, argues that territorium nullius and terra nullius are the same thing.[6] 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:

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:

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:

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:

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:

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 150W to 90W), 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 2,060km2 (800sqmi) 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 Halaib 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 (each claims the other owns it). Tawil has no settled population, but the land is used by Bedouins who roam the area.[d]

Under Serbian control, claimed by Croatia

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.[14]

On 13April 2015, Vt Jedlika from the Czech Party of Free Citizens proclaimed the right-libertarian micronation of Liberland on Gornja Siga.[15][16]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.[17] 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.[18]

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.

A narrow strip of land adjacent to two territorial markers along the Burkina FasoNiger 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.[19]

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.

A disputed archipelago in the East China Sea, the uninhabited Pinnacle 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.

The People's Republic of China and the Philippines both claim the Scarborough Shoal or Panatag Shoal or Huangyan Island (simplified Chinese: ; traditional Chinese: ; pinyin: Hungyn Do), 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.[20][21][22][23][24]

Despite this, China continues to build artificial islands in the South China Sea, and Scarborough Shoal is a prime location[citation needed] 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.[25]

According to Ian Mitchell, Rockall was terra nullius until it was claimed by the United Kingdom in 1955.It was formally annexed in 1972.[26][27][28]

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.[29] 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.[30]

In 1987, Britain extended its territorial waters from 3 to 12nmi (5.6 to 22.2km; 3.5 to 13.8mi), meaning that Sealand is now within them.[31]

DenmarkNorway, the Dutch Republic, the Kingdom of Great Britain, and the Kingdom of Scotland 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.[5]

During the 19th century, both Norway and Russia made strong claims to the archipelago. In 1909, Italian jurist Camille Piccioni described Spitzbergen, as it was then known, as terra nullius:

The territorial dispute was eventually resolved by the Svalbard Treaty of 9 February 1920 which recognized Norwegian sovereignty over the islands.

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.[33]

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".[citation needed]

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.[34]The Permanent Court of International Justice ruled against the Norwegian claim. The Norwegians accepted the ruling and withdrew their claim.

A similar concept of "uncultivated land" was employed by John Quincy Adams to identify supposedly unclaimed wilderness.[35]

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.

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".[36]

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.[37] 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".[38][39]

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 (18721879).[40] The ruling thus had far-reaching significance for the land claims of all Indigenous Australians (both Torres Strait Islanders and Aboriginal Australians).

The controversy over Australian land ownership erupted into the "history wars". The 1992 Mabo decision overturned the doctrine of terra nullius in Australia.[41]

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."[42]

In 1840, the newly appointed Lieutenant-Governor of New Zealand, Captain William Hobson of the Royal Navy, following instructions from the British government, declared the Middle Island of New Zealand (later known as the "South Island") as terra nullius,[citation needed] and therefore fit for occupation by European settlers. Hobson's decision was also influenced by a small party of French settlers heading towards Akaroa on the Banks Peninsula to settle in 1840.[43][need quotation to verify]

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 Nahuelpn and Antimil to have set the stage for an era of Chilean "republican colonialism".[44]

View the following chart as if it was a "cross-section" of the earth, stretching from underground to outer space.

restrictions on national jurisdiction and sovereignty

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