Terra nullius

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.
History.
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.
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 Michael 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.
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 Merete 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:
Current claims of "terra nullius".
Antarctica.
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.
Bir Tawil is an example of a territory often claimed to be "terra nullius". Between Egypt and the Sudan is the 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. Both countries assert the border that let them claim the Hala'ib Triangle, which is significantly larger than Bir Tawil and next 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.
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.
Americas.
Canada.
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".
Clipperton Island.
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."
Guano Islands.
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.
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".
United States.
A similar concept of "uncultivated land" was employed by John Quincy Adams to identify supposedly unclaimed wilderness.
Australia.
Aboriginal Australians inhabited Australia for over 50,000 years before European settlement, which commenced in 1788. Indigenous customs, rituals and laws were unwritten. It was formerly claimed 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 "uncivilized 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 Islanders 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 both Torres Strait Islanders and other Aboriginal Australians.
The controversy over Australian land ownership erupted into the so-called "history wars". The 1992 Mabo decision overturned the doctrine of "terra nullius" in Australia.
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.
North Atlantic.
Eastern Greenland.
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.
Rockall.
According to Ian Mitchell, Rockall was "terra nullius" until it was claimed by the United Kingdom in 1955. It was formally annexed in 1972.
Sealand.
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.
In 1987, Britain extended its territorial waters from 3 nm to 12 nm, meaning that Sealand is now within them.
Svalbard.
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.
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.
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.
Western Sahara.
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.