Terra nullius

Terra nullius (/ˈtɛrə nʌˈlaɪ.əs/, plural terrae nullius) is a Latin expression deriving from Roman law meaning "nobody's land", 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 laws, as documented in the case of the Yirrkala community.

However, the indigenous 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, 29 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).

Prompted by Batman's Treaty (June 1835) with Wurundjeri elders of the area around the future Melbourne, in August 1835 Governor Bourke of New South Wales 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.

In 1982, Eddie Mabo and four other Torres Strait Islanders from Mer (Murray Island) started legal proceedings to establish their traditional land ownership. This led to Mabo v Queensland (No 1). 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. This ruling overturned the long-established legal doctrine of terra nullius. The ruling thus had far-reaching significance for the land claims of both Torres Strait Islanders and other Indigenous Australians. The controversy over Australian land ownership has erupted in the so-called "History wars." Historian Michael Connor, in his critique of the legal fiction, has claimed that the concept of terra nullius 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 Richard Blackburn ruled that Australia had been considered "desert and uncultivated" (a term which included territory in which resided "uncivilized inhabitants in a primitive state of society") 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". Later, on 1 February 2014, the traditional owners of land on Badu Island received freehold title to 10,000 hectare in an act of the Queensland Government.

Former terrae nullius elsewhere

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 Denmarkâ€"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

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 the second voyage of James Cook in 1773â€"74. Several countries made claims to parts of the continent in the first half of the 20th century, while other areas remain unclaimed.

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. The former Nationalist government on the Chinese mainland had also claimed this territory after the founding of the Republic of China in 1911.

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

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.

Pinnacle Islands (Senkaku/Diaoyu)

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), who both claim sovereignty over the islands.

Burkina Faso and Niger

A narrow strip of land adjacent to two territorial markers along the Burkina Fasoâ€"Niger border was claimed by neither country until the International Court of Justice settled a more extensive territorial dispute in 2013. The former terra nullius was awarded to Niger.

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 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. Bir Tawil has no settled population.

Land portions along the Danube river

As a consequence of the border dispute between Croatia and Serbia, there are some areas along the western bank of the Danube river that are unclaimed by either party. Serbia has de facto control over areas where territorial claims of both nations overlap, while Croatia has control over the mutually unclaimed parts.

On the largest of those land parcels, Czech activist Vít Jedlička has proclaimed the libertarian micronation Liberland.

Land strip at the Croatiaâ€"Slovenia border

Brezovica pri Metliki is a village located in the southeastern part of Slovenia, about 50 km air distance from Zagreb, Croatia. Brezovica Žumberačka is a Croatian exclave that is surrounded by the Slovenian village. It is confirmed by both Croatian and Slovenian cadaster maps, although boundary lines slightly differ. Croatia has a second exclave within 400 meters of Brezovica Žumberačka. This exclave would normally be an enclave also, except that neither Slovenia nor Croatia claims one parcel of land that adjoins the exclave. If Slovenia were to claim the parcel, Croatia's exclave would become an enclave as well. As it is, the exclave is bordered by Slovenia and terra nullius.

Unclaimed areas in Antarctica

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. For the signatories of the treaty, celestial bodies are treated, de jure, under the common heritage of mankind principle.

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 a reserved right of the coastal state. Exploitation of mineral resources in the extended continental shelf is a reserved right of the coastal state, but it must pay tax on these activities to the International Seabed Authority (UNCLOS, Art. 82). The archipelagic waters are covered by a special hybrid regime with rules regarding territorial and internal waters.

On vessels, spacecraft 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:

• The boundary between outer space and airspace is not defined. In common parlance, the Kármán line (100 km) is generally recognized as the boundary between airspace and outer space, but this definition is not explicitly recognized in any treaty.
• 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 and Palestine, the United Nations observer states;
• Cook Islands and Niue, associated with and represented in foreign affairs by New Zealand;
• the 17 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;

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
• No man's land
• 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)