Terra nullius (/ˈtɛrəˈnʌlɪəs/,[1] pluralterrae nullius) is aLatin expression meaning "nobody's land".[2]Since the nineteenth century it has occasionally been used ininternational law as a principle to justify claims that territory may be acquired by a state'soccupation of it.[a][4] There are currently three territories sometimes claimed to beterra nullius:Bir Tawil (a strip of land betweenEgypt and theSudan), four pockets of land near theDanube due to theCroatia–Serbia border dispute, and parts ofAntarctica, principallyMarie Byrd Land.
In international law,terra nullius is territory which belongs to no state. Sovereignty over territory which isterra nullius can be acquired by any state by occupation.[5] According toOppenheim: "The only territory which can be the object of occupation is that which does not already belong to another state, whether it is uninhabited, or inhabited by persons whose community is not considered to be a state; for individuals may live on as territory without forming themselves into a state proper exercising sovereignty over such territory."[6]
Occupation ofterra nullius is one of several ways in which a state can acquire territory under international law. The other means of acquiring territory are conquest,cession by agreement, accretion through the operations of nature, andprescription through the continuous exercise of sovereignty.[7][8]
Although the termterra nullius was not used in international law before the late nineteenth century,[9] some writers have traced the concept to theRoman law termres nullius, meaningnobody's thing. In Roman law, things that wereres nullius, such as wild animals (ferae bestiae), lost slaves and abandoned buildings could be taken as property by anyone by seizure. Benton and Straumann, however, state that the derivation ofterra nullius fromres nullius is "by analogy" only.[10]
Sixteenth century writings onres nullius were in the context of European colonisation in theNew World and thedoctrine of discovery. In 1535,Domingo de Soto argued that Spain had no right to the Americas because the lands had not beenres nullius at the time of discovery.[11]Francisco de Vitoria, in 1539, also used theres nullius analogy to argue that the indigenous populations of the Americas, although “barbarians”, had both sovereignty and private ownership over their lands, and that the Spanish had gained no legal right to possession through mere discovery of these lands.[12] Nevertheless, Vitoria stated that the Spanish possibly had a limited right to rule the indigenous Americans because the latter “are unsuited to setting up or administering a commonwealth both legitimate and ordered in human and civil terms.”[13]
Alberico Gentili, in hisDe Jure Belli Libri Tres (1598), drew a distinction between the legitimate occupation of land that wasres nullius and illegitimate claims of sovereignty through discovery and occupation of land that was notres nullius, as in the case of the Spanish claim to the Americas.[14]Hugo Grotius, writing in 1625, also stated that discovery does not give a right to sovereignty over inhabited land, “For discovery applies to those things which belong to no one.”[15]
By the eighteenth century, however, some writers argued that territorial rights over land could stem from the settlement and cultivation of that land.William Blackstone, in 1765, wrote, "Plantations or colonies, in distant countries, are either such where the lands are claimed by right of occupancy only, by finding them desert and uncultivated, and peopling them from the mother-country; or where, when already cultivated, they have been either gained by conquest, or ceded to us by treaties. And both these rights are founded upon the law of nature, or at least upon that of nations."[16]
Several years before Blackstone,Emer de Vattel, in hisLe droit des gents (1758), drew a distinction between land that was effectively occupied and cultivated, and the unsettled and uncultivated land of nomads which was open to colonisation.[17]
Borch states that many commentators erroneously interpreted this to mean that any uncultivated lands, whether inhabited or not, could be claimed by a colonising state by right of occupancy.[18] Borch places the shift towards the view that "uncultivated" but inhabited lands wereterra nullius primarily in the 19th century, and argues it was a result of political developments and the rise of new intellectual currents such asscientific racism andlegal positivism.[19]
TheBerlin West Africa Conference of 1884-85 endorsed the principle that sovereignty over an unclaimed territory required effective occupation, and that where native populations had established effective occupation their sovereignty could not be unilaterally overturned by a colonising state.[20]: 10
The termterra nullius was used in 1885 in relation to the dispute between Spain and the United States overContoy Island. Herman Eduard von Hoist, wrote, “Contoy was not, in an international sense, a desert, that is an abandoned island and henceterra nullius."[21] In 1888, theInstitut de Droit International introduced the concept ofterritorium nullius (nobody’s territory) as apublic law equivalent to theprivate law concept ofres nullius.[22]
In 1909, the Italian international jurist CamillePiccioni described the island ofSpitzbergen in the Arctic Circle asterra nullius. Even though the island was inhabited by the nationals of several European countries, the inhabitants did not live under any formal sovereignty.[23]
In subsequent decades, the termterra nullius gradually replacedterritorium nullius. Fitzmaurice argues that the two concepts were initially distinct,territorium nullius applying to territory in which the inhabitants might have property rights but had not developed political sovereignty whereasterra nullius referred to an absence of property. Nevertheless,terra nullius also implied an absence of sovereignty because sovereignty required property rights acquired through theexploitation of nature.[24] Michael Connor, however, argues thatterritorium nullius andterra nullius were the same concept, meaning land without sovereignty, and that property rights and cultivation of land were not part of the concept.[25]
The termterra nullius was adopted by theInternational Court of Justice in its 1975 Western Sahara advisory opinion.[26] The majority wrote, "'Occupation' being legally an original means of peaceably acquiring sovereignty over territory otherwise than by cession or succession, it was a cardinal condition of a valid 'occupation' that the territory should beterra nullius – a territory belonging to no-one – at the time of the act alleged to constitute the 'occupation'."[27] The court found that at the time of Spanish colonisation in 1884, the inhabitants of Western Sahara were nomadic but socially and politically organised in tribes and under chiefs competent to represent them. According to State practice of the time the territory therefore was notterra nullius.[28]
There are three current instances where land is sometimes claimed to beterra nullius:Bir Tawil borderingEgypt and theSudan,four small areas along theCroatia–Serbia border, andMarie Byrd Land inAntarctica.
BetweenEgypt and theSudan is the 2,060 km2 (800 sq mi) landlocked territory ofBir 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 theHalaib Triangle under Egypt's; the other border did the reverse. Each country asserts the border that would give it the much larger Halaib Triangle, to the east, which is adjacent to theRed Sea, with the side effect that Bir Tawil is unclaimed by either country (each claims the other owns it). Bir Tawil has no settled population, but the land is used byBedouins who roam the area.[b]
Croatia andSerbia dispute several small areas on the east bank of theDanube. However,four pockets on the western river bank, of which Gornja Siga is the largest, are not claimed by either country. Serbia makes no claims on the land while Croatia states that the land belongs to Serbia.[32] Croatia states that the disputed area is notterra nullius and they are negotiating with Serbia to settle the border.[33]
While several countries madeclaims to parts of Antarctica in the first half of the 20th century, the remainder, including most ofMarie Byrd Land (the portion east from150°W to90°W), has not been claimed by any sovereign state. Signatories to theAntarctic Treaty of 1959 agreed not to make such claims, except theSoviet Union and theUnited States, who reserved the right to make a claim.
An undefined area from20°W to45°E was historically considered potentially unclaimed; the Norwegian claim inQueen Maud Land was interpreted as covering the coastal regions, but not continuing all the way to the South Pole. In 2015, the claim was extended to reach as far as 90°S.[34]
Several territories have been claimed to beterra nullius. In a minority of those claims, international and domestic courts have ruled on whether the territory is or wasterra nullius or not.
A narrow strip of land adjacent to two territorial markers along theBurkina Faso–Niger border was claimed by neither country until theInternational Court of Justice settled amore extensive territorial dispute in 2013. The former unclaimed territory was awarded to theNiger.[35]
At the request ofMorocco, theInternational Court of Justice in 1975 addressed whetherWestern Sahara wasterra nullius at the time of Spanish colonization in 1885. The court found inits advisory opinion that Western Sahara was notterra nullius at that time.
Adisputed archipelago in theEast China Sea, the uninhabitedPinnacle Islands, were claimed byJapan to have become part ofits territory asterra nullius in January 1895, following the Japanese victory in theFirst Sino-Japanese War. However, this interpretation is not accepted by thePeople's Republic of China (PRC) and theRepublic of China (Taiwan), both of whom claim sovereignty over the islands.
It was an area of 7,044 km2 (2,720 sq mi; 704,400 ha; 1,741,000 acres) on the border betweenSaudi Arabia andIraq within which the border between the two countries had not been settled. The neutral zone came into existence following theUqair Protocol of 1922 that defined the border between Iraq and theSultanate of Nejd (Saudi Arabia's predecessor state). An agreement to partition the neutral zone was reached by Iraqi and Saudi representatives on 26 December 1981, and approved by the Iraqi National Assembly on 28 January 1982. The territory was divided on an unknown date between 28 January and 30 July 1982.[36] Notice was given to the United Nations in June 1991.[36][37]
ThePeople's Republic of China, theRepublic of China (Taiwan) and thePhilippines claimScarborough Shoal, also known as Panatag Shoal or Huangyan Island (simplified Chinese:黄岩岛;traditional Chinese:黃巖島;pinyin:Huángyán Dǎo). The nearest landmass is the Philippine island ofLuzon at 220 km (119 nmi), located in theSouth China Sea. The Philippines claims it under the principle ofterra nullius and the fact that it lies within its EEZ (exclusive economic zone). Meanwhile, both China and Taiwan claim the shoal based on historical records that Chinese fishermen had discovered and mapped the shoal since the 13th century.
Previously, the shoal was administered as part ofMunicipality of Masinloc,Province of Zambales, by the Philippines. Since theScarborough Shoal standoff in 2012, the shoal has been administered as part ofXisha District,Sansha City,Hainan Province, by the People's Republic of China. Taiwan places the shoal under the administration ofCijin District,Kaohsiung City, but does not have control of the shoal.[38][39]
ThePermanent Court of Arbitration (PCA) denied the lawfulness of China's claim in 2016;[40][41][42][43][44] China rejected the ruling, calling it "ill-founded".[45] In 2019, Taiwan also rejected the ruling and has sent more naval vessels to the area.[46][47]
It has been speculated that Scarborough Shoal is a prime location for the construction of an artificial island[citation needed] and Chinese ships have been seen in the vicinity of the shoal. However, analysis of photos has concluded that the ships lack dredging equipment and therefore represent no imminent threat of reclamation work.[48]
The termterra nullius has been applied by some modern academics in discussing theEnglish colonisation of Ireland, although the term is not used in the international law sense and is often used as an analogy. Griffen and Cogliano state that the English viewed Ireland as aterra nullius.[49] InThe Irish Difference: A Tumultuous History of Ireland’s Breakup With Britain, Fergal Tobin writes that "Ireland had no tradition of unified statehood and no culturally unified establishment. Indeed, it had never known any kind of political unity until a version of it was imposed byCromwell's sword […] So the English Protestant interest […] came to regard Ireland as a kind ofterra nullius."[50] Similarly, Bruce McLeod writes inThe Geography of Empire in English Literature, 1580-1745 that "although the English were familiar with Ireland and its geography in comparison to North America, they treated Ireland as though it wereterra nullius and thus easily and geometrically subdivided into territorial units."[51] Rolston and McVeigh trace this attitude back toGerald of Wales (13th century), who wrote "This people despises work on the land, has little use for the money-making of towns, contemns the rights and privileges of citizenship, and desires neither to abandon, nor lose respect for, the life which it has been accustomed to lead in the woods and countryside." The semi-nomadism of the native Irish meant that some English judged them not to be productive users of land. However, Rolston and McVeigh state that Gerald made it clear that Ireland was acquired by conquest and not through the occupation ofterra nullius.[52]
According to Ian Mitchell,Rockall wasterra nullius until it was claimed by theUnited Kingdom in 1955.It was formally annexed in 1972.[53][54][55]
In 1967,Paddy Roy Bates claimed an abandoned British anti-aircraft gun tower in the North Sea as the "Principality of Sealand". The structure is now within British territorial waters and no country recognises Sealand.[56]
Denmark–Norway, theDutch Republic, theKingdom of Great Britain, and theKingdom of Scotland all claimed sovereignty over the archipelago ofSvalbard in the seventeenth century, but none permanently occupied it. Expeditions from each of these polities visited Svalbard principally during the summer forwhaling, with the first two sending a few wintering parties in the 1620s and 1630s.[57]
During the 19th century, bothNorway andRussia made strong claims to the archipelago. In 1909, Italian jurist Camille Piccioni described Spitzbergen, as it was then known, asterra nullius:
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.[58]
The territorial dispute was eventually resolved by theSvalbard Treaty of 9 February 1920 which recognized Norwegian sovereignty over the islands.
Joseph Trutch, the firstLieutenant Governor of British Columbia, insisted thatFirst Nations had never owned land, and thus their land claims could safely be ignored. It is for this reason that most ofBritish Columbia remainsunceded land.[59]
InGuerin v. The Queen, aCanadian Supreme Court decision of 1984 on aboriginal rights, the Court stated that the government has afiduciary duty toward the First Nations of Canada and established aboriginal title to be asui 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) easternGreenland in 1931, claiming that it constitutedterra nullius and calling the territoryErik the Red's Land.[60]
ThePermanent 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 byJohn Quincy Adams to identify supposedly unclaimedwilderness.[61]
TheGuano Islands Act of 18 August 1856 enabled citizens of the U.S. to take possession of islands containingguano 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 thePresident of the United States to use the military to protect such interests, and establishes the criminal jurisdiction of the United States.
The British penalcolony of New South Wales, which included more than half of mainland Australia, was proclaimed by Governor CaptainArthur Phillip at Sydney in February 1788.[62] At the time of British colonisation, Aboriginal Australians had occupied Australia for at least 50,000 years. They were complexhunter-gatherers with diverse economies and societies and about 250 different language groups.[63][64] The Aboriginal population of the Sydney area was an estimated 4,000 to 8,000 people who were organised in clans which occupied land with traditional boundaries.[65][66]
There is debate over whether Australia was colonised by the British from 1788 on the basis that the land wasterra nullius. Frost, Attwood and others argue that even though the termterra nullius was not used in the eighteenth century, there was widespread acceptance of the concept that a state could acquire territory through occupation of land that was not already under sovereignty and was uninhabited or inhabited by peoples who had not developed permanent settlements, agriculture, property rights or political organisation recognised by European states.[67] Borch, however, states that, "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.”[68]
InMabo v Queensland (No 2) (1992), Justice Dawson stated, "Upon any account, the policy which was implemented and the laws which were passed in New South Wales make it plain that, from the inception of the colony, the Crown treated all land in the colony as unoccupied and afforded no recognition to any form of native interest in the land."[69]
Stuart Banner states that the first known Australian legal use of the concept (although not the term)terra nullius was in 1819 in a tax dispute betweenBarron Field and the Governor ofNew South WalesLachlan Macquarie. The matter was referred to British Attorney GeneralSamuel Shepherd and Solicitor GeneralRobert Gifford who advised that New South Wales had not been acquired by conquest or cession, but by possession as "desert and uninhabited".[70][71]
In 1835, aProclamation by Governor Bourke stated that British subjects could not obtain title over vacant Crown land directly from Aboriginal Australians.[72]
InR v Murrell (1836) Justice Burton of the Supreme Court of New South Wales stated, "although it might be granted that on the first taking possession of the Colony, the aborigines were entitled to be recognised as free and independent, yet they were not in such a position with regard to strength as to be considered free and independent tribes. They had no sovereignty."[73]
In the Privy Council caseCooper v Stuart (1889), Lord Watson stated that New South Wales was, "a tract of territory practically unoccupied, without settled inhabitants or settled law, at the time when it was peacefully annexed to the British dominions."[74]
In theMabo Case (1992), theHigh Court of Australia considered the question of whether Australia had been colonised by Britain on the basis that it wasterra nullius. The court did not consider the legality of the initial colonisation as this was a matter of international law and, "The acquisition of territory by a sovereign state for the first time is an act of state which cannot be challenged, controlled or interfered with by the courts of that state."[75] The questions for decision included the implications of the initial colonisation for the transmission of the common law to New South Wales and whether the common law recognised that the Indigenous inhabitants had any form of native title to land. Dismissing a number of previous authorities, the court rejected the "enlarged notion of terra nullius", by which lands inhabited by Indigenous peoples could be considered desert and uninhabited for the purposes of Australianmunicipal law.[76] The court found that the common law of Australia recognised a form of native title held by the Indigenous peoples of Australia and that this title persisted unless extinguished by a valid exercise of sovereign power inconsistent with the continued right to enjoy native title.[77]
The sovereignty ofClipperton Island was settled by arbitration betweenFrance andMexico. KingVictor 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 thereforeterritorium nullius, and the French occupation then was sufficient and legally continuing.[78]
In 1840, the newly appointedLieutenant-Governor ofNew Zealand, CaptainWilliam Hobson of theRoyal Navy, following instructions from the British government, declared sovereignty over the Middle Island (later called theSouth Island) andStewart Island on the basis they wereterra nullius.[citation needed]
Patagonia was according to some considerations regarded aterra nullius in the 19th century. This notion ignored the Spanish Crown's recognition of indigenousMapuche sovereignty and is considered by scholars Nahuelpán and Antimil to have set the stage for an era of Chilean "republican colonialism".[79]
Antarctica was what international lawyers refers to asterra nullius – literally, "nobody's land".
…formålet med anneksjonen var å legge under seg det landet som til nå ligger herreløst og som ingen andre enn nordmenn har kartlagt og gransket. Norske myndigheter har derfor ikke motsatt seg at noen tolker det norske kravet slik at det går helt opp til og inkluderer polpunktet.
document in the collection of the National Archives of the United Kingdom, Kew, Richmond, Surrey, UK– Governor Burke's 1835 proclamation ofterra nullius.