Terra nullius
Terra 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, 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 people that European empires 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''
Few territories are currently considered terra nullius. Each of these are claimed by numerous unrecognised virtual micronations.Bir Tawil
is an example of a territory often claimed to be terra nullius. Between Egypt and 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 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 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 nation. 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.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, 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.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.Australia
inhabited Australia for over 65,000 years before European settlement, which commenced in 1788. Indigenous customs, rituals and laws were unwritten. It has been claimed that Australia was considered terra nullius at the time of settlement. This is also described as a "doctrine of discovery".At the Federation Banquet celebrating the Federation of Australia on 1 January 1901, the Premier of New South Wales, Sir William Lyne said: "Of the three great colonial possessions, Australia's lot has been the happiest. Unlike Canada and South Africa, she has not had a race problem to solve".
In 1971, in the controversial 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" 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 started legal proceedings to establish their traditional land ownership. This led to Mabo v Queensland . In 1992, after ten years of hearings before the Queensland Supreme Court and the High Court of Australia, the latter court found that the Mer people had owned their land prior to annexation by Queensland. 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.
Svalbard
or Great Britain, the Netherlands, 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.
Eastern Greenland
occupied and claimed parts of 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.
Scarborough Shoal (South China Sea)
The Philippines and the People's Republic of China both claim the Scarborough Shoal or Panatag Shoal or Huangyan Island, nearest to the island of Luzon, located in the South China Sea. The Philippines claims it under the principles of terra nullius and EEZ. China's claim refers to its discovery in the 13th century by Chinese fishermen. However, despite China's position of non-participation in an UNCLOS case, in 2016 the 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 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.
Canada
, 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 then there has been a more complicated debate and a general narrowing of the definition of "fiduciary duty".