Terra nullius (, plural terrae nullius) is a Latin expression meaning "nobody's land". Since the nineteenth century, it has been used in international law to refer to the principle by which territories deemed not to belong to any recognised sovereign state could be acquired through occupation. In historical scholarship, the term is also used retrospectively to describe colonial practices in which European powers claimed sovereignty over lands by referring to them as empty, vacant, or unowned, including in territories where indigenous populations were present. Since the twentieth century, the application of terra nullius to inhabited territories was rejected in several jurisdictions as part of increasing recognition of Indigenous rights, including in Mabo v Queensland (No 2) in Australia. Today Antarctica remains as the only major landmass that is sometimes considered to be wholly or partially terra nullius. Other territories sometimes claimed to be terra nullius include Bir Tawil, a strip of land between Egypt and Sudan, and four pockets of land on the banks of the Danube, on the Croatia-Serbia border; both due to border disputes where both competing claims involve assigning a particular piece of territory to the other party.
Doctrine In international law, the classical doctrine of terra nullius holds that territory can be acquired through occupation if it is not under the sovereignty of any state. Robert Jennings and Arthur Watts describe occupation as applicable to territory not already subject to state sovereignty, including uninhabited territory and territory inhabited by populations not regarded as constituting a state. Alexander Orakhelashvili states that in the 21st century there are few areas that are possibly terra nullius as almost all territory is under the sovereignty of a state.
Irene Watson argues that international law, including the doctrine of terra nullius, was part of a colonial project that divided the world into civilised and non-civilised states under which indigenous and other non-European societies were often not recognised as holding sovereignty, despite having their own systems of law and territorial organisation.
The application of terra nullius to inhabited territories has been severely curtailed in modern jurisprudence. In its Advisory Opinion on Western Sahara ICJ 12, the ICJ held that territories inhabited by socially and politically organised peoples could not be regarded as terra nullius, a position that has not been overturned. This reasoning has since been cited in subsequent cases concerning Indigenous land rights, including in Mabo vs Queensland (No 2) (1992) in Australia where the High Court rejected the terra nullius doctrine as a legal fiction and recognised the pre-existing laws, customs, and land rights of Indigenous Australians. Regarding modern human rights perspectives, the Australian Human Rights Commission has argued that the doctrine is incompatible with contemporary human rights standards, and that "Terra nullius, racism and destruction of a peoples’ sovereignty are intrinsically linked, in Australia as in other former colonies".
History The concept of justifying the occupation of foreign territory by describing it as "vacant" or belonging to no-one, was sometimes employed by European colonial powers, even where the territory was inhabited by indigenous populations. Although the term terra nullius was not used in international law until the 19th century, historians and legal scholars sometimes apply it retrospectively to describe such cases. However, there is debate over whether the term is applicable before the 19th century.
Some writers have traced the concept to the Roman law term res nullius, meaning nobody's thing. In Roman law, things that were res 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 of terra nullius from res nullius is "by analogy" only.: "Contrary to the view of some historians, our analysis will show that res nullius was a concept with firm foundation in Roman legal sources, but terra nullius was merely derived from the Roman concept of res nullius by analogy."
Sixteenth century writings on res nullius were in the context of European colonisation in the New World and the doctrine of discovery. In 1535, Domingo de Soto argued that Spain had no right to the Americas because the lands had not been res nullius at the time of discovery. Francisco de Vitoria, in 1539, also used the res 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. 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."
Alberico Gentili, in his De Jure Belli Libri Tres (1598), drew a distinction between the legitimate occupation of land that was res nullius and illegitimate claims of sovereignty through discovery and occupation of land that was not res nullius, as in the case of the Spanish claim to the Americas. 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."
By the eighteenth century, however, some writers argued that "uncultivated" lands or territories used by nomadic peoples could be treated as effectively empty if it was not used in ways recognised by European legal and agricultural norms. William Blackstone, in 1765, wrote that territories that were already occupied and politically organised had to be acquired, if at all, through conquest or cession by treaty. In contrast, Blackstone suggested that if the territories were considered "desert and uncultivated", they could be settled and claimed through occupation.
Several years before Blackstone, Emer de Vattel, in his Le droit des gents (1758), explicitly argued that land can be regarded as empty even if there were people living in it - if those inhabitants were not farming it according to European standards. He justified his reasoning by claiming that people who chose to avoid labor and use the land for hunting and herding flocks, were not using the land efficiently and hence had "no reason to complain" if more industrious nations arrive to take possession of part of their lands. Vattel drew a distinction between land that was effectively occupied and cultivated, and the unsettled and uncultivated land of nomads which he argued was lawfully open to colonisation.
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. Borch places the shift towards the view that "uncultivated" but inhabited lands were terra nullius primarily in the 19th century, and argues it was a result of political developments and the rise of new intellectual currents such as scientific racism and legal positivism.
The Berlin 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.
The term terra nullius was used in 1885 in relation to the dispute between Spain and the United States over Contoy Island. Herman Eduard von Hoist, wrote, "Contoy was not, in an international sense, a desert, that is an abandoned island and hence terra nullius." In 1888, the introduced the concept of territorium nullius (nobody's territory) as a public law equivalent to the private law concept of res nullius.
In 1909, the Italian international jurist Camille Piccioni described the island of Spitsbergen in the Arctic Circle as terra nullius. Even though the island was inhabited by the nationals of several European countries, the inhabitants did not live under any formal sovereignty.
In subsequent decades, the term terra nullius gradually replaced territorium 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 whereas terra nullius referred to an absence of property. Nevertheless, terra nullius also implied an absence of sovereignty because sovereignty required property rights acquired through the exploitation of nature. Michael Connor, however, argues that territorium nullius and terra nullius were the same concept, meaning land without sovereignty, and that property rights and cultivation of land were not part of the concept.
Since the 1940s, some historians used the term terra nullius to describe colonial legal reasoning used by British authorities in relation to their acquisition of indigenous-inhabited territories. Instead colonial actors at the time sometimes used the phrase "uninhabited land or island". The term "uninhabited" wasn't a literal concept to mean physical emptiness, but was used to regard a land as having no sovereign. However, European powers used a range of justifications for colonising inhabited lands and historians debate whether terra nullius adequately explains colonial reasoning before the 19th century.
The International Court of Justice in its 1975 Western Sahara advisory opinion assessed the doctrine of terra nullius in context of Spanish colonisation. 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 be terra nullius – a territory belonging to no-one – at the time of the act alleged to constitute the 'occupation'." The court found that at the time of colonisation in 1884, the inhabitants of Western Sahara were nomadic but socially and politically organised in tribes and under chiefs competent to represent them. It concluded that territories inhabited by organised peoples could not be regarded as terra nullius and therefore that Western Sahara was not terra nullius at the time of Spanish colonisation.
Current claims of terra nullius Antarctica
Antarctica is administered under the Antarctic Treaty System, under which the seven states that maintain claims on the continent agree to not attempt to enforce sovereignty in a multitude of areas and under which other signatories are under no obligation to recognise or respect any of those claims. There are multiple competing views for what Antarctica's status under international law is, with one being that the continent is terra nullius or having a status similar to it. There are also others who claim that the continent is not terra nullius but rather terra communalis. Separately from the continent as a whole, a sector of Antarctica known as Marie Byrd Land has been argued to be terra nullius, and the only such territory left in the world.
Gornja Siga and other pockets
Croatia and Serbia dispute several small areas on the east bank of the Danube. 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. Croatia states that the disputed area is not terra nullius and they are negotiating with Serbia to settle the border.
Bir Tawil