Terra nullius (/ˈtɛrə.nʌˈlaɪəs/, 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, (see reception statute) though in some cases doing so would violate an international law or treaty.
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.
The United States and Canada define the maritime boundary through the Dixon Entrance in different ways. The boundary was originally agreed upon in 1825 between Russia and the UK, but the treaty wording was insufficiently precise. To resolve the ambiguity, an arbitration tribunal in 1903 issued a decision defining the Alaska/Canada boundary, which included marking a straight line from Cape Muzon to the entrance of Portland Canal, known as the "A–B" line. The court specified the initial boundary point (Point "A") at the northern end of Dixon Entrance and also designated Point "B" 72 NM to the east. Canada's position is that "A" and "B" are part of the arbitrated boundary delimitation, thus rendering nearly all of Dixon Entrance as internal waters. The U.S. does not recognize the "A–B" line as an official boundary, instead regarding it as allocating sovereignty over the land masses within the Dixon Entrance, with Canada's land south of the line. The U.S. regards the waters as subject to international marine law, and in 1977 it defined an equidistant territorial line that is mainly to the south of the "A–B" line, but not entirely. North of Dundas Island, the equidistance line swings north of the "A–B" line. The intersecting lines create four separate water areas with differing claim status. The two areas south of the "A–B" line are claimed by both countries. The other two water areas are north of the "A–B" line and are not claimed by either country. The two unclaimed areas are about 72 square kilometres (28 sq mi) and 1.4 square kilometres (0.54 sq mi) in size.
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 that fits. For the signatories of the treaty, celestial bodies are treated, de jure, under the common heritage of mankind principle.
However, this has not stopped many people from exploiting the fact that these claims only account for countries, not companies and individuals. No known micronations, however, have been claimed on other celestial bodies, such as the moon, with the exception of the Aerican Empire.
An example of terra nullius is 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.
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, and subsequently announced the establishment of self-styled "embassies" elsewhere in the world. However, no governmental entity has recognized this claim.
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.
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 indicated the significance of the doctrine of terra nullius by a Proclamation that Batman's so-called treaty was null and void because 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 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" (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.
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. 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 erupted into 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 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.
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. English common law of the 18th century allowed for the legal settlement of "uninhabited or barbarous country".
Svalbard was considered terra nullius until the Svalbard Treaty of 9 February 1920 recognised Norwegian sovereignty over the islands. 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.
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. The Norwegians accepted the ruling and withdrew their claim.
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.
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.
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".
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.
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.
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 terra nullius was awarded to Niger.
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."
One of the few micronations to control any actual territory, 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. 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.
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 country. Serbia has de facto control over areas where territorial claims of both nations overlap, while Croatia has de facto control over the mutually unclaimed parts.
In 2015, Czech activist Vít Jedlička unilaterally declared a micronation he named Free Republic of Liberland, espousing libertarian ideals and claiming the largest of the disputed pockets on the right (western) bank of the Danube. Shortly after, the Kingdom of Enclava was declared, eventually claiming the second largest pocket as their territory, followed by the Principality of Ongal, which claimed the remaining pockets.
The Croatian Ministry of Foreign and European Affairs has rejected these claims, stating that the differing border claims between Serbia and Croatia do not involve terra nullius, and are not subject to occupation by a third party, and the Serbian Ministry of Foreign Affairs has stated that Liberland does not infringe upon the border of Serbia.
Brezovica pri Metliki is a village located in the southeastern part of Slovenia, about 50 kilometres (31 mi) 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, which was created on 29 June 2017 when the Permanent Court of Arbitration decided that a disputed 2.4 ha parcel adjoining the enclave is part of Slovenia, thus completing the encirclement of the second Croatian enclave. Croatia has stated that it will ignore the arbitration decision.
In April 2015, a group of tourists from Poland visited Brezovica to declare this unclaimed 2.4 ha parcel as a sovereign state, the Kingdom of Enclava. On 21 May 2015, the Slovenian Foreign Ministry said that the territory was Slovenian and that the determination of land borders between Slovenia and Croatia should take place in the court of arbitration. Later, the parcel that had been claimed as Enclava was awarded to Slovenia by the court. The founders of Enclava ceased their claim and moved to the second of the largest unclaimed land portions along the Danube river near the Croatian village of Batina and Liberland, although the confederation of Autia claimed it first.
On 29 June 2017, the Arbitration Tribunal announced its decision in the border dispute. The ruling was hailed by Slovenia, but Croatia announced that it would not accept it because it had left the proceedings in 2015.
In respect of the Mura River region, the Tribunal determined that generally, the international boundary follows the aligned cadastral limits. Regarding the hamlet of Brezovec-del/Murišće, the Tribunal determined that the boundary between Croatia and Slovenia runs to the south-east of the settlement. In the areas of Novakovec, Ferketinec, and Podturen in Croatia and Pince in Slovenia, the boundary continues to follow the limits of the cadastres of Croatia and Slovenia as they stood before the purported modifications in 1956. Regarding Mursko Središće and Peklenica, the Tribunal determined that the boundary is in the middle of the Mura River as recorded in the agreed 1956 Minutes on the Determination of the Borders of the Cadastral District of Peklenica.
The boundary in the Razkrižje area follows the aligned cadastral limits, as well as in the case of Santavec River and Zelena River areas. Along the Drava River, the Tribunal determined that the boundary follows the aligned cadastral limits, which run along a series of historic boundary stones recorded in a 1904 protocol. The boundaries in the Slovenian region of Macelj and the Croatian region of Haloze are set out in Slovenia's cadastre. Along the disputed areas along the Sotla River, the Tribunal determined that the boundary generally follows the cadastral limits where aligned, two disputed areas follow the Croatia's cadastral register. Along Sava and Bregana Rivers, the border follows the aligned cadastral limits. In the Gorjanci/Žumberak area (Brezovica pri Metliki, above), the disputed area lies within Slovenia's territory. The settlement of Drage lies in Slovenia. The Tribunal declared that in the Trdinov Vrh/Sveta Gera area, the border follows the cadastral limits. The barracks are on Croatian territory, however, the Tribunal "observes that it has no jurisdiction to address Croatia’s request for a declaration as to the presence of Slovenian civilian and military personnel in that area". Along the Kamenica River, the border follows Croatia's claim. Along Čabranka River, the border follows the cadastral limits. The same holds for the area near Črneča Vas. The boundary near the hamlets of Draga and Novi Kot in Slovenia and Prezid in Croatia was demarcated in 1913.
The area referred to as the "Tomšič plots" is located in Slovenia. The area near Gomance forms part of Slovenia's territory. In case of areas near Klana and Zabiče on the one hand and Lisac and Sušak on the other hand, the border follows the cadastral map from 1878. The area of Kućibreg/Topolovec is divided according to the Croatian claim. The Tribunal has decided that land border in Istria follows the Dragonja river and ends in the middle of the Chanel of St. Odorik.
The Court decided that the Bay of Piran's border should be a straight line that connects the land border at the mouth of the Dragonja River to the point at the end of the gulf, which is three times closer to Croatia then to the Slovenian side, therefore awarding Slovenia 3/4 of the gulf. In addition, the Tribunal ruled that Slovenia has a right for junction through the Croatian territorial water which, according to the Tribunal, should be 2.5 nautical miles wide and would be connected to the border.
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 current entities that exercise jurisdiction and sovereignty rights are:
|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|
Even as to terra nullius, like a volcanic island or territory abandoned by its former sovereign, a claimant by right as against all others has more to do than planting a flag or rearing a monument. From the 19th century the most generous settled view has been that discovery accompanied by symbolic acts give no more than "an inchoate title, an option, as against other states, to consolidate the first steps by proceeding to effective occupation within a reasonable time.8 I. Brownlie, Principles of Public International Law 146 (4th ed.1990); see also 1 C. Hyde, International Law 329 (rev.2d ed.1945); 1 L. Oppenheim International Law §§222-223, pp. 439–441 (H. Lauterpacht 5th ed.1937); Hall A Treatise on International Law, at 102–103; 1 J. Moore, International Law 258 (1906); R. Phillimore, International Law 273 (2d ed. 1871); E. Vattel, Law of Nations, §208, p. 99 (J. Chitty 6th Am. ed. 1844).
Passports, currencies and flags: We discuss what it takes to create your own country.
This document implemented the doctrine of terra nullius upon which British settlement was based, reinforcing the notion that the land belonged to no nation prior the British Crown taking possession of it. Aboriginal people therefore could not sell or assign the land, nor could an individual person acquire it, other than through distribution by the Crown... Although many people at the time also recognised that the Aboriginal occupants had rights in the lands (and this was confirmed in a House of Commons report on Aboriginal relations in 1837), the law followed and almost always applied the principles expressed in Bourke's proclamation. This would not change until the Australian High Court's decision in the Mabo Case in 1992.
The Tribunal determines that, in these circumstances, area 7.1 forms part of the territory of Slovenia, and the boundary runs along Slovenia’s cadastral limits. The Tribunal recognizes that the delimitation thus made on the basis of the cadastral limits is one of great complexity. The cadastral boundary creates numerous meanders and even enclaves.
autogenerated1was invoked but never defined (see the help page).
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