Terra nullius

History[edit]

Although the term terra nullius was not used in international law before the late nineteenth century,^[9] 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.^[10]


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.^[11] 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.^[12] 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.”^[13]


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.^[14] 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.”^[15]


By the eighteenth century, however, some writers argued that territorial rights over land could stem from the settlement and cultivation of that land. William Blackstone, in 1765, wrote, “Plantations or colonies, in distant countries, are either such where the lands are claimed by right of occupancy only, by finding them desert and uncultivated, and peopling them from the mother-country; or where, when already cultivated, they have been either gained by conquest, or ceded to us by treaties. And both these rights are founded upon the law of nature, or at least upon that of nations."^[16]


Borch states that many commentators erroneously interpreted this to mean that uncultivated lands, whether inhabited or not, could be claimed by a colonising state by right of occupancy.^[17] Several years before Blackstone, Emer de Vattel, in his Le droit des gents (1758), drew a distinction between land that was effectively occupied and cultivated, and the unsettled and uncultivated land of nomads which was open to colonisation.^[18]


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.^[19]: 10


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."^[20] In 1888, the Institut de Droit International introduced the concept of territorium nullius (nobody’s territory) as a public law equivalent to the private law concept of res nullius.^[21]


In 1909, the Italian international jurist Camille Piccioni described the island of Spitzbergen 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.^[22]


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.^[23] 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.^[24]


The term terra nullius was adopted by the International Court of Justice in its 1975 Western Sahara advisory opinion.^[25] 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'."^[26] The court found that at the time of Spanish colonisation in 1884, the inhabitants of Western Sahara were nomadic but socially and politically organised in tribes and under chiefs competent to represent them. According to State practice of the time the territory therefore was not terra nullius.^[27]