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Terra nullius (English pronunciation , Latin pronunciation IPA ) is a Latin expression deriving from Roman Law meaning "no man's land", i.e. "empty land", applying the general principle of res nullius to real estate, in terms of private ownership and/or as territory under public law.

Rationale

In Antiquity peace was considered an exceptional condition between states -often founfed by force-, only established by peace treaty, war being their natural rapport. Any territory that was not explicitly recognized as legitimately possessed by a treaty partner was considered free to be legitimately occupied, even by offensive war.

As civilizations adopted more pacifist ideologies, such as the moral principles of Christianity or Islam, which reversed the 'natural war' by considering peace normal (even God's will) unless there were legitimate reasons for war, territories considered controlled by any legitimate state could in principle no longer be invaded to seize them by force . The reasoning could be stretched, as the population (if any) was supposed to benefit from the introduction of the principles of law and morality (as there usually was a state religion, these could be held universally valid by divine law, alternatively general principles were found in natural law), supposed to be guaranteed by a legitimate state. Thus colonisation was soon justified as "bringing faith and civilisation" to the 'savage infidels', even if that meant the subjugation or even destruction, of their native polities, religion and culture.

Modern applications of the term stem from 16th and 17th century doctrines describing land that was unclaimed by a sovereign entity recognized by European authorities as land that was not owned at all, and therefore open to claim and even to annexation by simple occupation in fact.

During the 18th century the doctrine gave legal force to the settlement of lands occupied by "backward" people, where no system of laws or ownership of property was held to exist (even though in some cases only the western ignorance made them fail to recognise the local legal system as such). The Swiss philosopher and international law theorist Emerich de Vattel, building on the philosophy of John Locke and others, proposed that terra nullius also applied where the land was not cultivated by the indigenous inhabitants. Since the land was not being cultivated, it was not being put to good use, therefore those who could cultivate the land had a right to the land.

While it is generally held inacceptable by all states for private persons to claim territory from a state, there have been cases that private claims by proprietors to (then former?) terra nullius were for years tolerated by states, and occasionally even supported against claims by third states. See for example Swains Island. Another way to deal with explorer's ambitions is for his patronizing state to agree in advance on priviliges in case of discovery (or first colonizing) of terra nullius which is then claimed for the state, reserving for the pioneer (and possibly his descendency) certain rights of private ownership, exploitation and even gubernatorial competences, as Spain granted Colombus, but such arrangements are legally the state's internal matters, not affecting international law.

Australia

"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." - Michael Connor in The Bulletin (Sydney), 20.8.2003: see further Connor 2005.

The United Kingdom did not rely on the principle of terra nullius to claim possession of Australia. However, historian and political activist Professor Henry Reynolds has claimed that it did. He and his many followers on the left of Australian history assert that the colonizing British believed that, prior to the arrival of Europeans, Australia was "a tract of territory practically unoccupied, without settled inhabitants or settled law" (as the Privy Council put it in 1889). This is a legal fiction, applied anachronistically as a historical fiction, as Indigenous Australians were known to inhabit the continent and unwritten legal codes were already operative in all Aboriginal groups which have been studied, as in the case of the Aboriginal people of the Yirrkala community. According to this political invention, now widely accepted in schools, universities, and websites, this was overlooked or ignored by the colonial authorities. In this story, the application of terra nullius to Australia was inconsistent with the practice elsewhere in the British Empire. The British Government is therefore said to have attempted, as early as the 1830s and 1840s, to bring Australian colonial practice into line with international law of the time and with the approach taken elsewhere in the Empire, when there is no evidence that either imperial or colonial authorities considered the legal basis of colonization to be in need of renovation. Leftist historians efforts towards conformity have been remarkably successful in generating the perception that Australian policy towards native land rights developed in a way markedly different from that of the rest of the British Empire, and that political and legal consequences should follow in current Australian law and politics.

Part of the explanation for the difference may lie in the several distinct meanings of the term Terra nullius that Professor Reynolds and his followers have employed. Some of that confusion is reproduced below.

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". Although Australia was clearly not unoccupied, scattered and nomadic Aboriginal groups would have been widely perceived, through European eyes of the time, as evidence of a barbarous country and thus no legal impediment to settlement. By contrast, most of the other territories ruled by Britain had significant native populations and well-established indigenous administrative codes, as in the cases of India and New Zealand. However, this explanation has been questioned, on the basis that the Indigenous societies inhabiting coastal regions and river basins — the people that British settlers would have first encountered in Australia — often had permanent settlements centred around food sources.

If one follows Professor Reynolds, rather than the historical record, you will believe that until the 1970s, the doctrine of terra nullius was generally accepted in Australia on the grounds that the continent had been "settled", a classification which gives no legal consideration to Indigenous customs. During the 1970s, historians revisited the colonization of Australia, reassessing the degree to which force had been used to dispossess the native inhabitants.

This prompted a number of lawyers and activists to suggest that Australia should be reclassified in law as "conquered" territory, a distinction which requires the conqueror to recognize the customs of those conquered. In 1971, in the controversial Gove land rights case, Justice Blackburn ruled that Australia had been terra nullius before European settlement, and that there was no such thing as native title in Australian law. 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. These cases were rejected by the courts, but the Australian High Court left the door open for a reassessment of whether the continent should be considered "settled" or "conquered".

The concept of terra nullius became a major issue in Australian politics when, in 1992, during an Aboriginal rights case known as Mabo, the High Court of Australia issued a judgement which some interpreted as an invalidation of terra nullius. The ruling was, however, rather narrower than that. The court did not reclassify Australia as a "conquered" territory but instead restated the terms of Australian sovereignty. The Crown is still deemed capable of lawfully extinguishing native title, but some native title still remains intact where clear indigenous rights can be proved to have existed before the native population was dispossessed. The 1996 Wik Decision went further, stating that native title and pastoral leases could co-exist over the same area; native peoples could use land for hunting and performing sacred ceremonies even without exercising rights of ownership.

The court's ruling in Mabo has enabled some Aboriginal peoples to reclaim territory appropriated under the doctrine of terra nullius. This has proven extremely controversial, as it has led to lawsuits seeking the transfer or restoration of land ownership rights to native groups. An estimated 3,000 further agreements have been reached in which Aboriginal peoples have regained former lands. One very recent example is that of a December 2004 case in which the Noonkanbah people were recognised as the traditional owners of a 1,811 km² plot of land in Western Australia. In the Northern Territory, 40 per cent of the land and most of its coastline is now in the hands of Aboriginal peoples.

Terra nullius elsewhere

Terra nullius was still relevant to international law in the 1970s, as evidenced by the UN General Assembly's request to the International Court of Justice in 1974 to determine the status of the Western Sahara (Río de Oro and Saguia el-Hamra) at the time of colonization by Spain.

Norway occupied and claimed parts of (then uninhabited) Eastern Greenland in the 1920s, claiming that it constituted Terra nullius. The matter was later settled in the Permanent Court of International Justice by 1933.

Another example of a terra nullius is Antarctica, none of which has yet been capable of supporting human habitation without supplies from the outside world.

Many Zionist leaders considered Palestine as terra nullius during the period of Jewish settlement in the late 19th and early 20th centuries, but there was no legal void, some Ottoman laws are even still invoked before Israeli courts in this century.

See also

External links

References

  • 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.
  • Rowse, Tim. "Terra nullius" - The Oxford Companion to Australian History. Ed. Graeme Davison, John Hirst and Stuart Macintyre. Oxford University Press, 2001.

Common law | Constitutional state types | International law | Legal fictions | Latin legal phrases | Native title | Aboriginal peoples in Canada

Terra nullius | Terra nullius | Ingenmansland | 无主土地

 

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