Terra nullius

For other uses, see No Man's Land (disambiguation).

Terra nullius (/ˈtɛrə nʌˈlaɪ.əs/, plural terrae nullius) is a Latin expression deriving from Roman law meaning "land belonging to no one", which is used in international law to describe territory which has never been subject to the sovereignty of any state, or over which any prior sovereign has expressly or implicitly relinquished sovereignty. Sovereignty over territory which is terra nullius may be acquired through occupation, though in some cases doing so would violate an international law or treaty.

History in Australia

European settlement of Australia commenced in 1788. Prior to this, Indigenous Australians inhabited the continent and had unwritten legal codes, as documented in the case of the Yirrkala community.

However, the Australians did not have any form of political organization that Europeans could understand as being analogous to their own institutions, and the British could not find recognised leaders with the authority to sign treaties, so treaties were not signed (in contrast to British colonial practices in many areas of North America, Africa, New Zealand, etc.).

The first test of terra nullius in Australia occurred with the decision of R v Tommy (Monitor, 28 November 1827), which indicated that the native inhabitants were only subject to English law where the incident concerned both natives and settlers. The rationale was that Aboriginal tribal groups already operated under their own legal systems. This position was further reinforced by the decisions of R v Boatman or Jackass and Bulleyes (Sydney Gazette, 25 February 1832) and R v Ballard (Sydney Gazette, 23 April 1829).

In 1835 Governor Bourke implemented the doctrine of terra nullius by proclaiming that Indigenous Australians could not sell or assign land, nor could an individual person or group acquire it, other than through distribution by the Crown.

The first decision of the New South Wales Supreme Court to make explicit use of the term terra nullius was R v Murrell and Bummaree (unreported, New South Wales Supreme Court, 11 April 1836, Burton J). Terra nullius was not endorsed by the Judicial Committee of the Privy Council until the decision of Cooper v Stuart in 1889, some fifty three years later.

However, journalist Michael Connor has claimed that the concept was a straw man developed in the late twentieth 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."

There is some controversy as to the meaning of the term. For example, it is asserted that, rather than implying mere emptiness, terra nullius can be interpreted as an absence of civilized society. The English common law of the time allowed for the legal settlement of "uninhabited or barbarous country".

In 1971, in the controversial Gove land rights case, Justice Blackburn ruled that Australia had been terra nullius before European settlement, and that there was no such thing as native title in Australian law. 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. These cases were rejected by the courts, but the Australian High Court left the door open for a reassessment of whether the continent should be considered "settled" or "conquered".

Mabo

The concept of terra nullius became a major issue in Australian politics when in 1992, during an Aboriginal rights case known as Mabo, the High Court of Australia issued a judgment which was a direct overturning of terra nullius. In this case, the Court found that there was a concept of native title in common law, that the source of native title was the traditional connection to or occupation of the land, that the nature and content of native title was determined by the character of the connection or occupation under traditional laws or customs and that native title could be extinguished by the valid exercise of governmental powers provided a clear and plain intention to do so was manifest.

In 1996, The High Court re-visited the subject of native title in Wik. The 4-3 majority in the Wik Decision stated that native title and pastoral leases could co-exist over the same area and that native peoples could use land for hunting and performing sacred ceremonies even without exercising rights of ownership. However, in the event of any conflict between the rights and interests of pastoralists and native title, it would be the former that would prevail.

The court's ruling in Mabo has enabled some Aboriginal peoples to reclaim limited territory appropriated under the doctrine of terra nullius. This has proven extremely controversial, as it has led to lawsuits seeking the transfer or restoration of land ownership rights to native groups. An estimated 3,000 further agreements have been reached in which Aboriginal peoples have regained former lands. An example is that of a December 2004 case in which the Noonkanbah people were recognised as the traditional owners of a 1,811 km² (699 sq mi) plot of land in Western Australia. In the Northern Territory, 40 per cent of the land and most of its coastline is now owned by Aboriginal peoples.

Terrae nullius elsewhere

Western Sahara

Terra nullius was still relevant to international law in the 1970s, as evidenced by the UN General Assembly's request to the International Court of Justice in 1974 to determine the status of the Western Sahara (Río de Oro and Saguia el-Hamra) at the time of colonization by Spain. (The court decided that Western Sahara had not been terra nullius at the time of colonization, but was the property of organized tribes among its indigenous population.)

Svalbard

Svalbard was considered to be a terra nullius until Norway was given sovereignty over the islands in the Svalbard Treaty of 9 February 1920. Scotland, the Netherlands, and Denmark–Norway all claimed sovereignty over the region in the seventeenth century, but none permanently occupied the islands. Each visited Svalbard only during the summer for whaling, with the first two sending a few wintering parties in the 1620s and 1630s.

Greenland

Main article: Erik the Red's Land

Norway occupied and claimed parts of (then uninhabited) Eastern Greenland in the 1920s, claiming that it constituted terra nullius. The matter was decided by the Permanent Court of International Justice against Norway.

Antarctica

Another example of a terra nullius was Antarctica, which was not sighted by humans until James Cook's second voyage in 1773/4. Several countries made claims to parts of the continent in the first half of the 20th century, but some areas still remain unclaimed, as described later in this article.

Scarborough Shoal

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.

New Zealand

Lieutenant William Hobson, following instructions of the British government, in 1840 pronounced the southern island of New Zealand to be uninhabited by civilised peoples, which qualified the land to be "terra nullius", and therefore fit for the Crown's political occupation.

Canada

Joseph Trutch, the first Lieutenant Governor of British Columbia, insisted that First Nations had never owned land, and thus could safely be ignored. It is for this reason that most of British Columbia remains unceded land.

In Guerin v. The Queen, a Supreme Court of Canada decision 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, there has been a more complicated debate and a general narrowing of the definition of "fiduciary duty".

Guano Islands

The Guano Islands Act from August 18, 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.

Senkaku Islands

A disputed archipelago in the East China Sea, the uninhabited Senkaku Islands are stated by Japan to have become part of their territory as terra nullius during the nineteenth century. This interpretation is not accepted by other claimants of the islands, the People's Republic of China (PRC) and the Republic of China (Taiwan).

The Principality of Sealand

In 1967, Roy Bates occupied Britain's HM Fort Roughs, founding The Principality of Sealand.

Current terrae nullius

Bir Tawil

Between Egypt and Sudan is the 2,060 km² (795 sq mi) landlocked territory of Bir Tawil, which was created during a 1902 border change between the two countries, along with the Hala'ib Triangle. Both countries insist on using the border that lets them claim the Hala'ib Triangle, which is significantly larger and next to the Red Sea, meaning Bir Tawil is claimed by neither country.

Unclaimed areas in 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.

While several countries have made claims to parts of Antarctica, most of Marie Byrd Land (the portion east of 150°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.

The Norwegian claim to Queen Maud Land left its southern boundary undefined, so the southern part of that segment of Antarctica may also be unclaimed.

International sea

Under the United Nations Convention on the Law of the Sea of 1982, the international waters and international seabed are treated under the common heritage of mankind principle by the signatories of the convention.

Celestial bodies

According to the Outer Space Treaty of 1967 outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means. They are treated under the common heritage of mankind principle by the signatories of the treaty.

Limits of national jurisdiction and sovereignty

The principal treaties defining sovereignty beyond land territory are the Outer Space Treaty and the United Nations Convention on the Law of the Sea. They confirm the full national jurisdiction over the coastal waters (internal and territorial) and over the continental shelf underground. There are limitations that allow foreign vessels the right of passage and for foreign states to lay pipelines and cables in the territorial waters, exclusive economic zone and continental shelf surface. Exploitation of marine life and mineral resources in these areas is reserved right for the coastal state. Exploitation of mineral resources in the extended continental shelf is reserved right for the coastal state, but it has to pay tax over these activities to the International Seabed Authority (UNCLOS, Art. 82). The archipelagic waters are covered by special hybrid regime with rules from territorial and internal waters.

On vessels, spacecrafts and structures in places with international jurisdiction or terra nullius the general rule is that the operator state of the vessel is responsible for it and regulates laws there. Additionally the crew are subject to the laws of the state of their citizenship . Earth orbital slots are the only type of extraterrestrial real estate recognised by law and are allocated by the International Telecommunication Union (part of the UN System).

There are some undefined limits for the application of jurisdiction and sovereignty:

• Boundary between outer space and airspace is not defined (30 km - 120 km).
• UNCLOS commission is defining the limits of the extended continental shelf.
• UNCLOS is inconclusive about the status of airspace over the contiguous zone (whether it is treated as international airspace or some special rules apply there).
• There is no defined bottom underground limit for jurisdiction and sovereignty, because in practice there are no cases where it is relevant and the current technology level does not allow the reaching of depths where conflicting claims could be made (there are some disputes about border underground oil and gas reserve reservoirs, but their depth is not enough so that the curvature of the Earth and the exact line of the underground border between the states matters).

The current entities that exercise jurisdiction and sovereignty rights are:

• the 193 United Nations member states;
• Holy See, the United Nations observer state;
• Cook Islands and Niue, associated with and represented in foreign affairs by New Zealand;
• the 16 non-self-governing territories with recognised right for self-determination by the United Nations (currently under jurisdiction of 5 UN members);
• the 10 states with limited recognition;
• Sovereign Military Order of Malta, the sole remaining sovereign non-state entity; has no territorial claims, but issues citizenship; has UN observer status
• the current terra nullius cases of Bir Tawil and Marie Byrd Land are not claimed by any of the other 222 entities;
• Stateless persons that do not have citizenship of any of the 222 entities.

Limits of national jurisdiction and sovereignty

Outer space (including Earth orbits; the Moon and other celestial bodies, and their orbits)
national airspace		territorial waters airspace	contiguous zone airspace	international airspace
land territory surface	internal waters surface	territorial waters surface	contiguous zone surface	Exclusive Economic Zone surface	international waters surface
internal waters		territorial waters	Exclusive Economic Zone		international waters
land territory underground		Continental Shelf surface			extended continental shelf surface		international seabed surface
		Continental Shelf underground			extended continental shelf underground		international seabed underground

  full national jurisdiction and sovereignty

  restrictions on national jurisdiction and sovereignty

  international jurisdiction per common heritage of mankind

See also

• Aboriginal land claims
• Australia
  • Henry A. Reynolds
  • History wars
  • Native title
    • Mabo v Queensland
    • Wik Peoples v Queensland
• Bir Tawil
• Land claim
• Manifest destiny
• Neutral territory
• 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>
• [1] High Court of Australia - MABO AND OTHERS v. QUEENSLAND (No. 2) (1992) 175 CLR 1 F.C. 92/014
• [2] 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)
• [3] 1975 International Court of Justice - Advisory Opinion regarding Western Sahara
• "History before European Settlement" Parliament of New South Wales - note misspelling as "terra nulius"
• material on terra nullius - NSW Primary School curriculum
• [4] 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)