Terra nullius

Terra nullius (/ˈtɛrə.nʌˈlaɪəs/, plural terrae nullius) is a Latin expression meaning "nobody's land",^[1] and is a principle sometimes used in international law to describe territory that may be acquired by a state's occupation of it.^[2]

First use of the term Terra Nullius

A part of the debate over the history of terra nullius is when the term itself was first used. According to professor 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 discussed and that terra nullius was introduced twenty years later during legal disputes over the polar regions.^[3]

Historian Michel Connor on the other hand, argues that territorium nullius and terra nullius is the same thing.^[4] Both scholars are active in the Australian History wars debate.

History

Terra nullius stems from the Roman law term res nullius, meaning nobody's thing. According to the Roman law ferae bestiae, things without an owner, such as wild animals, lost slaves and abandoned buildings, were res nullius and could be taken as property by anyone by seizure.

There is considerable debate among historians about how and when the terra nullius concept 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. The history wars caused Australian historians to reevaluate the country's history, the dispossession of Aborigines and whether the land best should be characterized as having been "settled" or "conquered." A part of this debate concerned whether terra nullius as a concept was ever used by England and other European powers to justify territorial conquest.

On one side of the debate are historians such as Alan Frost and Henry Reynolds who claims 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.^[5]

Historians debate whether "first discovery and effective occupation" was applied to territory inhabited by indigenous people that European empires 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 (ie, belonging to no one), to which they might gain permanent title by first discovery and effective occupation.^[6]

On the other side of the debate are historians which claim that terra nullius is a much younger concept, which didn't become formalized before the end of the 19th century. Historian Merete 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.^[7]

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.^[8]

Current 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.

Bir Tawil

Simplified map showing Egypt's claim (yellow and green), Sudan's claim (blue and green) and Bir Tawil (white)

Bir Tawil is an example of a territory often claimed to be terra nullius.^[9] Between Egypt and Sudan is the 2,060 km² (795 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 Sudan's control and the Hala'ib Triangle under Egypt's; the other border did the reverse. Both countries assert the border that lets them claim Hala'ib, which is significantly larger and next to the Red Sea, with the side effect that Bir Tawil is unclaimed by either nation. The area is, however, under the de facto control of Egypt, although it is not shown on official Egyptian maps.^[10] Bir Tawil has no settled population but the land is used by Bedouins who roam the area.^[11]

In June 2014, Jeremiah Heaton planted a flag in Bir Tawil to claim the region as a new sovereign state, the Kingdom of North Sudan,^{[12][13][14][15]} and subsequently announced the establishment of self-styled "embassies" elsewhere in the world.^[16] However, no governmental entity has recognized this claim.

Antarctica

Territorial claims in Antarctica, with the unclaimed part of West Antarctica shown in white. The off-white area near the South Pole in the Norwegian sector may also be unclaimed, since Norway extended its claim here in 2015, thus violating the Antarctic Treaty.^[17]

Another example of terra nullius is 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 nation. 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.

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.

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.^[18] 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.^[19]

Former claims of terra nullius (occupying / claiming nations)

Svalbard (Norway)

Scotland or Great Britain, the Netherlands, and Denmark–Norway all claimed sovereignty over the region in the seventeenth century, but none permanently occupied the islands. 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.^[20]

During the 19th century, both Norway and Russia made strong claims to the archipelago. In 1909, Italian jurist Camille Piccioni described Spitzbergen, the main island in the archipelago, as terra 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.^[21]

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

Eastern Greenland (Greenland)

Norway occupied and claimed parts of (then uninhabited) Eastern Greenland in 1931, claiming that it constituted terra nullius. They called the territory Erik the Red's Land.^[22] The matter was decided by the Permanent Court of International Justice against Norway. The Norwegians accepted the ruling and withdrew their claim.

Scarborough Shoal (Philippines / People's Republic of China)

The Philippines and the People's Republic of China 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 based on the UNCLOS, the 2016 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. Observers of the photos have concluded that the ships lack dredging equipment and therefore represent no imminent threat of reclamation work.^[23]

South Island of New Zealand (New Zealand)

In 1840, Lieutenant William Hobson, following instructions of the British government, pronounced the southern island of New Zealand to be uninhabited by civilized peoples, which qualified the land to be terra nullius, and therefore fit for the Crown's political occupation. Hobson's decision was also influenced by a small party of French settlers heading towards Akaroa on Banks Peninsula to settle in 1840.^[24]

Pinnacle Islands/Senkaku Islands/Diaoyu Islands/Diaoyutai Islands (Japan / People's Republic of China / Republic of China)

A disputed archipelago in the East China Sea, the uninhabited Senkaku Islands, are claimed by Japan to have become part of its territory as terra nullius in January 1895, following 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.

Burkina Faso and Niger Frontier (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.^[25]

Clipperton Island (France)

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."^[26]

Rockall (United Kingdom)

According to Ian Mitchell, Rockall was terra nullius until it was claimed by the United Kingdom in 1955.^[27] It was formally annexed in 1972.^[27][28][29]

See also

• Aboriginal title
  • Henry A. Reynolds
  • History wars
  • Native title
    • Mabo v Queensland
    • Wik Peoples v Queensland
• Homestead principle
• Indigenous land rights
• International Court of Justice Advisory Opinion on Western Sahara, 1975
• Land claim
• Manifest destiny
• Neutral territory
• No man's land
• Res nullius (original and broader formulation in law)
• Uncontacted people
• Uti possidetis

References

Notes

Bibliography

• Connor, Michael. "The invention of terra nullius", Sydney: Macleay Press, 2005.
• Culhane, Dara. The Pleasure of the Crown: Anthropology, Law, and the First Nations. Vancouver: Talon Books, 1998.
• Lindqvist, Sven. Terra nullius. A Journey through No One's Land. Translated by Sarah Death. Granta, London 2007. Pbk 2008. The New Press, New York 2007. Details here
• Rowse, Tim. "Terra nullius" – The Oxford Companion to Australian History. Ed. Graeme Davison, John Hirst and Stuart Macintyre. Oxford University Press, 2001.

External links

• Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Reports, 1994–2009 http://www.humanrights.gov.au/social_justice/sj_report/ and Native Title Reports, 1994–2009 http://www.humanrights.gov.au/social_justice/nt_report/index.html
• A History of the concept of "Terra Nullius" The University of Sydney
• Governor Burke's 1835 Proclamation of terra nullius NSW Migration Heritage Centre – Statement of Significance
• Veracini L, An analysis of Michael Conner's denial of terra nullius (The Invention of Terra Nullius)
• Terror Nullius <http://www.wulfdhund.de/rassismusanalyse/?Ergaenzungen:Australien>
• High Court of Australia – MABO AND OTHERS v. QUEENSLAND (No. 2) (1992) 175 CLR 1 F.C. 92/014
• High Court of Australia – The Wik Peoples v The State of Queensland & Ors; The Thayorre People v The State of Queensland & Ors [1996] HCA 40 (23 December 1996)
• 1975 International Court of Justice – Advisory Opinion regarding Western Sahara
• "History before European Settlement" Parliament of New South Wales
• material on terra nullius – NSW Primary School curriculum
• R. v. Boatman or Jackass and Bulleye – Decisions of the Superior Courts of New South Wales, 1788–1899 (Published by the Division of Law, Macquarie University)