Terra nullius
Encyclopedia
Terra nullius is a Latin
expression deriving from Roman law
meaning "land belonging to no one" (or "no man'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.
commenced in 1788. Prior to this, Indigenous Australians
inhabited the continent and had unwritten legal codes, as documented in the case of the Yirrkala community.
However, the 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, 28 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).
In 1835 Governor Bourke
implemented the doctrine of terra nullius by proclaiming that Indigenous Australians
could not sell or assign land, nor could an individual person 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.
However, journalist Michael Connor has claimed that the concept was a straw man
developed in the late twentieth century:
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 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".
issued a judgment which was a direct overturning of terra nullius. In this case, the Court found that there was a concept of native title in common law, that the source of native title was the traditional connection to or occupation of the land, that the nature and content of native title was determined by the character of the connection or occupation under traditional laws or customs and that native title could be extinguished by the valid exercise of governmental powers provided a clear and plain intention to do so was manifest.
In 1996, The High Court re-visited the subject of native title in Wik
. The 4-3 majority in the Wik Decision stated that native title and pastoral leases could co-exist over the same area and that native peoples could use land for hunting and performing sacred ceremonies even without exercising rights of ownership. However, in the event of any conflict between the rights and interests of pastoralists and native title, it would be the former that would prevail.
The court's ruling in Mabo has enabled some Aboriginal peoples to reclaim limited 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. An example is that of a December 2004 case in which the Noonkanbah people were recognised as the traditional owners of a 1811 km² (699 sq mi) plot of land in Western Australia
. In the Northern Territory
, 40 per cent of the land and most of its coastline is now owned by Aboriginal peoples.
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. (The court decided that Western Sahara had not been terra nullius at the time of colonization, but was the property of organized tribes among its indigenous population.)
was considered to be a terra nullius until Norway
was given sovereignty over the islands in the Spitsbergen Treaty of 9 February 1920. Scotland
, the Netherlands
, and Denmark-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.
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.
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.
, following instructions of the British government, in 1840 pronounced the southern island
of New Zealand
to be uninhabited by civilised peoples, which qualified the land to be "terra nullius", and therefore fit for the Crown's political occupation.
, 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".
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.
and Sudan
is the 2060 km² (795 sq mi) landlocked territory of Bir Tawil
, which was created during a 1902 border change between the two countries, along with the Hala'ib Triangle
. Both countries insist on using the border that lets them claim the Hala'ib Triangle, which is significantly larger and next to the Red Sea
, meaning Bir Tawil is claimed by neither country.
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.
of 1982, the international waters
and international seabed
are treated under the common heritage of mankind
principle by the signatories of the convention.
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. They are treated under the common heritage of mankind
principle by the signatories of the 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 pipeline
s and cables in the territorial waters, exclusive economic zone and continental shelf surface. Exploitation of marine life and mineral resources in these areas is reserved right for the coastal state. Exploitation of mineral resources in the extended continental shelf is reserved right for the coastal state, but it has to pay tax over these activities to the International Seabed Authority
(UNCLOS, Art. 82). The archipelagic waters are covered by special hybrid regime with rules from territorial and internal waters.
On vessels, spacecrafts 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:
Latin
Latin is an Italic language originally spoken in Latium and Ancient Rome. It, along with most European languages, is a descendant of the ancient Proto-Indo-European language. Although it is considered a dead language, a number of scholars and members of the Christian clergy speak it fluently, and...
expression deriving from Roman law
Roman law
Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...
meaning "land belonging to no one" (or "no man's land
No man's land
No man's land is a term for land that is unoccupied or is under dispute between parties that leave it unoccupied due to fear or uncertainty. The term was originally used to define a contested territory or a dumping ground for refuse between fiefdoms...
"), which is used in international law to describe territory which has never been subject to the sovereignty
Sovereignty
Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...
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 AustraliaAustralia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
commenced in 1788. Prior to this, Indigenous Australians
Indigenous Australians
Indigenous Australians are the original inhabitants of the Australian continent and nearby islands. The Aboriginal Indigenous Australians migrated from the Indian continent around 75,000 to 100,000 years ago....
inhabited the continent and had unwritten legal codes, as documented in the case of the Yirrkala community.
However, the 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, 28 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).
In 1835 Governor Bourke
Richard Bourke
General Sir Richard Bourke, KCB was Governor of the Colony of New South Wales, Australia between 1831 and 1837.-Early life and career:...
implemented the doctrine of terra nullius by proclaiming that Indigenous Australians
Indigenous Australians
Indigenous Australians are the original inhabitants of the Australian continent and nearby islands. The Aboriginal Indigenous Australians migrated from the Indian continent around 75,000 to 100,000 years ago....
could not sell or assign land, nor could an individual person acquire it, other than through distribution by the Crown
Crown land
In Commonwealth realms, Crown land is an area belonging to the monarch , the equivalent of an entailed estate that passed with the monarchy and could not be alienated from it....
.
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
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
until the decision of Cooper v Stuart in 1889, some fifty three years later.
However, journalist Michael Connor has claimed that the concept was a straw man
Straw man
A straw man is a component of an argument and is an informal fallacy based on misrepresentation of an opponent's position, twisting his words or by means of [false] assumptions...
developed in the late twentieth century:
"By the time of MaboMabo v QueenslandMabo v Queensland was a landmark High Court of Australia decision recognising native title in Australia for the first time...
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
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
of the time allowed for the legal settlement of "uninhabited or barbarous country".
In 1971, in the controversial Gove land rights case
Gove land rights case
Milirrpum v Nabalco Pty Ltd, 17 FLR 141 , was the first litigation on native title in Australia. The decision of Justice Richard Blackburn ruled against the claimants on a number of issues of law and fact, rejecting the doctrine of aboriginal title in favor of terra nullius.Although Milirrpum was...
, Justice Blackburn ruled that Australia had been terra nullius before European settlement, and that there was no such thing as native title
Native title
Native title is the Australian version of the common law doctrine of aboriginal title.Native title is "the recognition by Australian law that some Indigenous people have rights and interests to their land that come from their traditional laws and customs"...
in Australian law
Law of Australia
The law of Australia consists of the Australian common law , federal laws enacted by the Parliament of Australia, and laws enacted by the Parliaments of the Australian states and territories...
. 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".
Mabo
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 AustraliaHigh Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
issued a judgment which was a direct overturning of terra nullius. In this case, the Court found that there was a concept of native title in common law, that the source of native title was the traditional connection to or occupation of the land, that the nature and content of native title was determined by the character of the connection or occupation under traditional laws or customs and that native title could be extinguished by the valid exercise of governmental powers provided a clear and plain intention to do so was manifest.
In 1996, The High Court re-visited the subject of native title in Wik
Wik Peoples v Queensland
Wik Peoples v The State of Queensland is a decision of the High Court of Australia delivered on 23 December 1996 on whether statutory leases extinguish native title rights. The court found that the statutory pastoral leases under consideration by the court did not bestow rights of exclusive...
. The 4-3 majority in the Wik Decision stated that native title and pastoral leases could co-exist over the same area and that native peoples could use land for hunting and performing sacred ceremonies even without exercising rights of ownership. However, in the event of any conflict between the rights and interests of pastoralists and native title, it would be the former that would prevail.
The court's ruling in Mabo has enabled some Aboriginal peoples to reclaim limited 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. An example is that of a December 2004 case in which the Noonkanbah people were recognised as the traditional owners of a 1811 km² (699 sq mi) plot of land in Western Australia
Western Australia
Western Australia is a state of Australia, occupying the entire western third of the Australian continent. It is bounded by the Indian Ocean to the north and west, the Great Australian Bight and Indian Ocean to the south, the Northern Territory to the north-east and South Australia to the south-east...
. In the Northern Territory
Northern Territory
The Northern Territory is a federal territory of Australia, occupying much of the centre of the mainland continent, as well as the central northern regions...
, 40 per cent of the land and most of its coastline is now owned by Aboriginal peoples.
Western Sahara
Terra nullius was still relevant to international lawInternational law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
in the 1970s, as evidenced by the UN General Assembly's request to the International Court of Justice
International Court of Justice
The International Court of Justice is the primary judicial organ of the United Nations. It is based in the Peace Palace in The Hague, Netherlands...
in 1974 to determine the status of the Western Sahara
Western Sahara
Western Sahara is a disputed territory in North Africa, bordered by Morocco to the north, Algeria to the northeast, Mauritania to the east and south, and the Atlantic Ocean to the west. Its surface area amounts to . It is one of the most sparsely populated territories in the world, mainly...
(Río de Oro
Río de Oro
Río de Oro , is, with Saguia el-Hamra, one of the two territories that formed the Spanish province of Spanish Sahara after 1969; it was originally taken as a Spanish colonial possession in the late 19th century...
and Saguia el-Hamra
Saguia el-Hamra
Saguia el-Hamra, in Arabic الساقية الحمراء, al-Saqiyah al-Hamra'a , is, with Río de Oro, one of the two territories that formed the Spanish province of Spanish Sahara after 1969. Its name comes from a waterway that goes through the capital....
) at the time of colonization by Spain. (The court decided that Western Sahara had not been terra nullius at the time of colonization, but was the property of organized tribes among its indigenous population.)
Svalbard
SvalbardSvalbard
Svalbard is an archipelago in the Arctic, constituting the northernmost part of Norway. It is located north of mainland Europe, midway between mainland Norway and the North Pole. The group of islands range from 74° to 81° north latitude , and from 10° to 35° east longitude. Spitsbergen is the...
was considered to be a terra nullius until Norway
Norway
Norway , officially the Kingdom of Norway, is a Nordic unitary constitutional monarchy whose territory comprises the western portion of the Scandinavian Peninsula, Jan Mayen, and the Arctic archipelago of Svalbard and Bouvet Island. Norway has a total area of and a population of about 4.9 million...
was given sovereignty over the islands in the Spitsbergen Treaty of 9 February 1920. Scotland
Scotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
, the Netherlands
Netherlands
The Netherlands is a constituent country of the Kingdom of the Netherlands, located mainly in North-West Europe and with several islands in the Caribbean. Mainland Netherlands borders the North Sea to the north and west, Belgium to the south, and Germany to the east, and shares maritime borders...
, and Denmark-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
Whaling
Whaling is the hunting of whales mainly for meat and oil. Its earliest forms date to at least 3000 BC. Various coastal communities have long histories of sustenance whaling and harvesting beached whales...
, with the first two sending a few wintering parties in the 1620s and 1630s.
Greenland
NorwayNorway
Norway , officially the Kingdom of Norway, is a Nordic unitary constitutional monarchy whose territory comprises the western portion of the Scandinavian Peninsula, Jan Mayen, and the Arctic archipelago of Svalbard and Bouvet Island. Norway has a total area of and a population of about 4.9 million...
occupied and claimed parts of (then uninhabited) Eastern Greenland
Greenland
Greenland is an autonomous country within the Kingdom of Denmark, located between the Arctic and Atlantic Oceans, east of the Canadian Arctic Archipelago. Though physiographically a part of the continent of North America, Greenland has been politically and culturally associated with Europe for...
in the 1920s, claiming that it constituted terra nullius. The matter was decided by the Permanent Court of International Justice
Permanent Court of International Justice
The Permanent Court of International Justice, often called the World Court, was an international court attached to the League of Nations. Created in 1922 , the Court was initially met with a good reaction from states and academics alike, with many cases submitted to it for its first decade of...
against Norway.
Antarctica
Another example of a terra nullius was Antarctica, which was not sighted by humans until 1820. Several countries made claims to parts of the continent in the first half of the 20th century, but some areas still remain unclaimed, as described later in this article.Scarborough Shoal
The PhilippinesPhilippines
The Philippines , officially known as the Republic of the Philippines , is a country in Southeast Asia in the western Pacific Ocean. To its north across the Luzon Strait lies Taiwan. West across the South China Sea sits Vietnam...
and the People's Republic of China
People's Republic of China
China , officially the People's Republic of China , is the most populous country in the world, with over 1.3 billion citizens. Located in East Asia, the country covers approximately 9.6 million square kilometres...
both claim the Scarborough Shoal
Scarborough Shoal
Scarborough Shoal or Scarborough Reef , more correctly described as a group of islands and reefs in an atoll shape than a shoal, is located between the Macclesfield Bank and Luzon, Philippines in the South China Sea. As with most of the landforms in this sea, the sovereignty of the area is disputed...
or Panatag Shoal or Huangyan Island (黄岩岛), nearest to the island of Luzon
Luzon
Luzon is the largest island in the Philippines. It is located in the northernmost region of the archipelago, and is also the name for one of the three primary island groups in the country centered on the Island of Luzon...
, located in the South China Sea
South China Sea
The South China Sea is a marginal sea that is part of the Pacific Ocean, encompassing an area from the Singapore and Malacca Straits to the Strait of Taiwan of around...
. The Philippines claims it under the principles of terra nullius and EEZ (Exclusive Economic Zone
Exclusive Economic Zone
Under the law of the sea, an exclusive economic zone is a seazone over which a state has special rights over the exploration and use of marine resources, including production of energy from water and wind. It stretches from the seaward edge of the state's territorial sea out to 200 nautical...
). China's claim refers to its discovery in the 13th century by Chinese fishermen.
New Zealand
Lieutenant William HobsonWilliam Hobson
Captain William Hobson RN was the first Governor of New Zealand and co-author of the Treaty of Waitangi.-Early life:...
, following instructions of the British government, in 1840 pronounced the southern island
South Island
The South Island is the larger of the two major islands of New Zealand, the other being the more populous North Island. It is bordered to the north by Cook Strait, to the west by the Tasman Sea, to the south and east by the Pacific Ocean...
of New Zealand
New Zealand
New Zealand is an island country in the south-western Pacific Ocean comprising two main landmasses and numerous smaller islands. The country is situated some east of Australia across the Tasman Sea, and roughly south of the Pacific island nations of New Caledonia, Fiji, and Tonga...
to be uninhabited by civilised peoples, which qualified the land to be "terra nullius", and therefore fit for the Crown's political occupation.
Canada
Joseph TrutchJoseph Trutch
Sir Joseph William Trutch, KCMG was an English-born Canadian engineer, surveyor and politician.-Early life and career:...
, the first Lieutenant Governor of British Columbia, insisted that First Nations
First Nations
First Nations is a term that collectively refers to various Aboriginal peoples in Canada who are neither Inuit nor Métis. There are currently over 630 recognised First Nations governments or bands spread across Canada, roughly half of which are in the provinces of Ontario and British Columbia. The...
had never owned land, and thus could safely be ignored. It is for this reason that most of British Columbia
British Columbia
British Columbia is the westernmost of Canada's provinces and is known for its natural beauty, as reflected in its Latin motto, Splendor sine occasu . Its name was chosen by Queen Victoria in 1858...
remains unceded land.
In Guerin v. The Queen
R. v. Guerin
Guerin v. The Queen [1984] 2 S.C.R. 335 was a landmark Supreme Court of Canada decision on aboriginal rights where the Court first stated that the government has a fiduciary duty towards the First Nations of Canada and established aboriginal title to be a sui generis right.-Background:The Musqueam...
, a Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
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
Sui generis
Sui generis is a Latin expression, literally meaning of its own kind/genus or unique in its characteristics. The expression is often used in analytic philosophy to indicate an idea, an entity, or a reality which cannot be included in a wider concept....
right. Since, there has been a more complicated debate and a general narrowing of the definition of "fiduciary duty".
Guano Islands
The Guano Islands ActGuano Islands Act
The Guano Islands Act is federal legislation passed by the U.S. Congress, on August 18, 1856. It enables 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...
from August 18, 1856, enabled citizens of the U.S. to take possession of islands containing guano
Guano
Guano is the excrement of seabirds, cave dwelling bats, and seals. Guano manure is an effective fertilizer due to its high levels of phosphorus and nitrogen and also its lack of odor. It was an important source of nitrates for gunpowder...
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.
Bir Tawil
Between EgyptEgypt
Egypt , officially the Arab Republic of Egypt, Arabic: , is a country mainly in North Africa, with the Sinai Peninsula forming a land bridge in Southwest Asia. Egypt is thus a transcontinental country, and a major power in Africa, the Mediterranean Basin, the Middle East and the Muslim world...
and Sudan
Sudan
Sudan , officially the Republic of the Sudan , is a country in North Africa, sometimes considered part of the Middle East politically. It is bordered by Egypt to the north, the Red Sea to the northeast, Eritrea and Ethiopia to the east, South Sudan to the south, the Central African Republic to the...
is the 2060 km² (795 sq mi) landlocked territory of Bir Tawil
Bir Tawil
Bir Tawil or Bi'r Tawīl is a area along the border between Egypt and Sudan which is claimed by neither country. It is sometimes referred to as the Bir Tawil Triangle, despite the area's quadrilateral shape, with the longer side in the north of the area running along the 22° north circle of...
, which was created during a 1902 border change between the two countries, along with the Hala'ib Triangle
Hala'ib Triangle
The Hala'ib Triangle is an area of land measuring located on the Red Sea's African coast...
. Both countries insist on using the border that lets them claim the Hala'ib Triangle, which is significantly larger and next to the Red Sea
Red Sea
The Red Sea is a seawater inlet of the Indian Ocean, lying between Africa and Asia. The connection to the ocean is in the south through the Bab el Mandeb strait and the Gulf of Aden. In the north, there is the Sinai Peninsula, the Gulf of Aqaba, and the Gulf of Suez...
, meaning Bir Tawil is claimed by neither country.
Unclaimed areas in Antarctica
Marie Byrd Land
Marie Byrd Land is the portion of West Antarctica lying east of the Ross Ice Shelf and the Ross Sea and south of the Pacific Ocean, extending eastward approximately to a line between the head of the Ross Ice Shelf and Eights Coast. It stretches between 158°W and 103°24'W...
(the portion east of 150°W
150th meridian west
The meridian 150° west of Greenwich is a line of longitude that extends from the North Pole across the Arctic Ocean, North America, the Pacific Ocean, the Southern Ocean, and Antarctica to the South Pole....
) has not been claimed by any sovereign nation. Signatories to the Antarctic Treaty
Antarctic Treaty System
The Antarctic Treaty and related agreements, collectively called the Antarctic Treaty System or ATS, regulate international relations with respect to Antarctica, Earth's only continent without a native human population. For the purposes of the treaty system, Antarctica is defined as all of the land...
of 1959 agreed not to make such claims, except the Soviet Union
Soviet Union
The Soviet Union , officially the Union of Soviet Socialist Republics , was a constitutionally socialist state that existed in Eurasia between 1922 and 1991....
and the United States, who reserved the right to make a claim.
The Norwegian claim to Queen Maud Land
Queen Maud Land
Queen Maud Land is a c. 2.7 million-square-kilometre region of Antarctica claimed as a dependent territory by Norway. The territory lies between 20° west and 45° east, between the British Antarctic Territory to the west and the Australian Antarctic Territory to the east. The latitudinal...
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 SeaUnited Nations Convention on the Law of the Sea
The United Nations Convention on the Law of the Sea , also called the Law of the Sea Convention or the Law of the Sea treaty, is the international agreement that resulted from the third United Nations Conference on the Law of the Sea , which took place from 1973 through 1982...
of 1982, the international waters
International waters
The terms international waters or trans-boundary waters apply where any of the following types of bodies of water transcend international boundaries: oceans, large marine ecosystems, enclosed or semi-enclosed regional seas and estuaries, rivers, lakes, groundwater systems , and wetlands.Oceans,...
and international seabed
International Seabed Authority
The International Seabed Authority is an intergovernmental body based in Kingston, Jamaica, that was established to organize and control all mineral-related activities in the international seabed area beyond the limits of national jurisdiction, an area underlying most of the world’s oceans...
are treated under the common heritage of mankind
Common heritage of mankind
Common heritage of mankind is a principle of international law which holds that defined territorial areas and elements of humanity's common heritage should be held in trust for future generations and be protected from exploitation by individual...
principle by the signatories of the convention.
Celestial bodies
According to the Outer Space TreatyOuter Space Treaty
The Outer Space Treaty, formally the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, is a treaty that forms the basis of international space law...
of 1967 outer space
Outer space
Outer space is the void that exists between celestial bodies, including the Earth. It is not completely empty, but consists of a hard vacuum containing a low density of particles: predominantly a plasma of hydrogen and helium, as well as electromagnetic radiation, magnetic fields, and neutrinos....
, including the Moon
Moon
The Moon is Earth's only known natural satellite,There are a number of near-Earth asteroids including 3753 Cruithne that are co-orbital with Earth: their orbits bring them close to Earth for periods of time but then alter in the long term . These are quasi-satellites and not true moons. For more...
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. They are treated under the common heritage of mankind
Common heritage of mankind
Common heritage of mankind is a principle of international law which holds that defined territorial areas and elements of humanity's common heritage should be held in trust for future generations and be protected from exploitation by individual...
principle by the signatories of the treaty.
Limits of national jurisdiction and sovereignty
The principal treaties defining sovereignty beyond land territory are the Outer Space TreatyOuter Space Treaty
The Outer Space Treaty, formally the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, is a treaty that forms the basis of international space law...
and the United Nations Convention on the Law of the Sea
United Nations Convention on the Law of the Sea
The United Nations Convention on the Law of the Sea , also called the Law of the Sea Convention or the Law of the Sea treaty, is the international agreement that resulted from the third United Nations Conference on the Law of the Sea , which took place from 1973 through 1982...
. 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 pipeline
Pipeline transport
Pipeline transport is the transportation of goods through a pipe. Most commonly, liquids and gases are sent, but pneumatic tubes that transport solid capsules using compressed air are also used....
s and cables in the territorial waters, exclusive economic zone and continental shelf surface. Exploitation of marine life and mineral resources in these areas is reserved right for the coastal state. Exploitation of mineral resources in the extended continental shelf is reserved right for the coastal state, but it has to pay tax over these activities to the International Seabed Authority
International Seabed Authority
The International Seabed Authority is an intergovernmental body based in Kingston, Jamaica, that was established to organize and control all mineral-related activities in the international seabed area beyond the limits of national jurisdiction, an area underlying most of the world’s oceans...
(UNCLOS, Art. 82). The archipelagic waters are covered by special hybrid regime with rules from territorial and internal waters.
On vessels, spacecrafts 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
Citizenship
Citizenship is the state of being a citizen of a particular social, political, national, or human resource community. Citizenship status, under social contract theory, carries with it both rights and responsibilities...
. Earth orbital slots are the only type of extraterrestrial real estate recognised by law and are allocated by the International Telecommunication Union
International Telecommunication Union
The International Telecommunication Union is the specialized agency of the United Nations which is responsible for information and communication technologies...
(part of the UN System
United Nations System
The United Nations system consists of the United Nations, its subsidiary organs , the specialized agencies, and affiliated organizations...
).
There are some undefined limits for the application of jurisdiction and sovereignty:
- Boundary between outer spaceOuter spaceOuter space is the void that exists between celestial bodies, including the Earth. It is not completely empty, but consists of a hard vacuum containing a low density of particles: predominantly a plasma of hydrogen and helium, as well as electromagnetic radiation, magnetic fields, and neutrinos....
and airspaceAirspaceAirspace means the portion of the atmosphere controlled by a country above its territory, including its territorial waters or, more generally, any specific three-dimensional portion of the atmosphere....
is not defined (30 km - 120 km). - 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 gasOil and gas fieldAn oil and gas field is a field, or vast reservoir, that contains both oil and natural gas.-See also:* Oil field* Natural gas field* Oil reservoir* List of oil fields* List of natural gas fields...
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
Sovereignty
Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...
rights are:
- the 193 United Nations member statesUnited Nations member statesThere are 193 United Nations member states, and each of them is a member of the United Nations General Assembly.The criteria for admission of new members are set out in the United Nations Charter, Chapter II, Article 4, as follows:...
; - Holy SeeHoly SeeThe Holy See is the episcopal jurisdiction of the Catholic Church in Rome, in which its Bishop is commonly known as the Pope. It is the preeminent episcopal see of the Catholic Church, forming the central government of the Church. As such, diplomatically, and in other spheres the Holy See acts and...
, the United Nations observer state; - Cook IslandsCook IslandsThe Cook Islands is a self-governing parliamentary democracy in the South Pacific Ocean in free association with New Zealand...
and NiueNiueNiue , is an island country in the South Pacific Ocean. It is commonly known as the "Rock of Polynesia", and inhabitants of the island call it "the Rock" for short. Niue is northeast of New Zealand in a triangle between Tonga to the southwest, the Samoas to the northwest, and the Cook Islands to...
, associatedAssociated stateAn associated state is the minor partner in a formal, free relationship between a political territory with a degree of statehood and a nation, for which no other specific term, such as protectorate, is adopted...
with and represented in foreign affairs by New ZealandNew ZealandNew Zealand is an island country in the south-western Pacific Ocean comprising two main landmasses and numerous smaller islands. The country is situated some east of Australia across the Tasman Sea, and roughly south of the Pacific island nations of New Caledonia, Fiji, and Tonga...
; - the 16 non-self-governing territoriesUnited Nations list of Non-Self-Governing TerritoriesThe United Nations list of Non-Self-Governing Territories is a list of countries that, according to the United Nations, are non-decolonized. The list was initially prepared in 1946 pursuant to Chapter XI of the United Nations Charter, and has been updated by the General Assembly on recommendation...
with recognised right for self-determination by the United Nations (currently under jurisdiction of 5 UN members); - the 10 states with limited recognition;
- Order of Malta, the sole non-state entity and UN observer that has no territorial claims, but grants citizenship;
- the current terra nullius cases of Bir TawilBir TawilBir Tawil or Bi'r Tawīl is a area along the border between Egypt and Sudan which is claimed by neither country. It is sometimes referred to as the Bir Tawil Triangle, despite the area's quadrilateral shape, with the longer side in the north of the area running along the 22° north circle of...
and Marie Byrd LandMarie Byrd LandMarie Byrd Land is the portion of West Antarctica lying east of the Ross Ice Shelf and the Ross Sea and south of the Pacific Ocean, extending eastward approximately to a line between the head of the Ross Ice Shelf and Eights Coast. It stretches between 158°W and 103°24'W...
are not claimed by any of the other 222 entities; - Stateless persons that do not have citizenship of any of the 222 entities.
| Outer space Outer space Outer space is the void that exists between celestial bodies, including the Earth. It is not completely empty, but consists of a hard vacuum containing a low density of particles: predominantly a plasma of hydrogen and helium, as well as electromagnetic radiation, magnetic fields, and neutrinos.... (including Earth orbit Orbit In physics, an orbit is the gravitationally curved path of an object around a point in space, for example the orbit of a planet around the center of a star system, such as the Solar System... s; the Moon Moon The Moon is Earth's only known natural satellite,There are a number of near-Earth asteroids including 3753 Cruithne that are co-orbital with Earth: their orbits bring them close to Earth for periods of time but then alter in the long term . These are quasi-satellites and not true moons. For more... and other celestial bodies, and their orbits) |
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| national airspace Airspace Airspace means the portion of the atmosphere controlled by a country above its territory, including its territorial waters or, more generally, any specific three-dimensional portion of the atmosphere.... |
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 Internal waters A nation's internal waters covers all water and waterways on the landward side of the baseline from which a nation's territorial waters is defined. It includes waterways such as rivers and canals, and sometimes the water within small bays. According to the United Nations Convention on the Law of... |
territorial waters Territorial waters Territorial waters, or a territorial sea, as defined by the 1982 United Nations Convention on the Law of the Sea, is a belt of coastal waters extending at most from the baseline of a coastal state... |
Exclusive Economic Zone Exclusive Economic Zone Under the law of the sea, an exclusive economic zone is a seazone over which a state has special rights over the exploration and use of marine resources, including production of energy from water and wind. It stretches from the seaward edge of the state's territorial sea out to 200 nautical... |
international waters International waters The terms international waters or trans-boundary waters apply where any of the following types of bodies of water transcend international boundaries: oceans, large marine ecosystems, enclosed or semi-enclosed regional seas and estuaries, rivers, lakes, groundwater systems , and wetlands.Oceans,... |
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| land territory underground Earth Earth is the third planet from the Sun, and the densest and fifth-largest of the eight planets in the Solar System. It is also the largest of the Solar System's four terrestrial planets... |
Continental Shelf Continental shelf The continental shelf is the extended perimeter of each continent and associated coastal plain. Much of the shelf was exposed during glacial periods, but is now submerged under relatively shallow seas and gulfs, and was similarly submerged during other interglacial periods. The continental margin,... surface |
extended continental shelf surface | international seabed International Seabed Authority The International Seabed Authority is an intergovernmental body based in Kingston, Jamaica, that was established to organize and control all mineral-related activities in the international seabed area beyond the limits of national jurisdiction, an area underlying most of the world’s oceans... surface |
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| Continental Shelf Continental shelf The continental shelf is the extended perimeter of each continent and associated coastal plain. Much of the shelf was exposed during glacial periods, but is now submerged under relatively shallow seas and gulfs, and was similarly submerged during other interglacial periods. The continental margin,... underground |
extended continental shelf underground | international seabed International Seabed Authority The International Seabed Authority is an intergovernmental body based in Kingston, Jamaica, that was established to organize and control all mineral-related activities in the international seabed area beyond the limits of national jurisdiction, an area underlying most of the world’s oceans... underground |
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See also
- Aboriginal land claims
- AustraliaAustraliaAustralia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
- Henry A. Reynolds
- History warsHistory warsThe history wars in Australia are an ongoing public debate over the interpretation of the history of the British colonisation of Australia and development of contemporary Australian society...
- Native titleNative titleNative title is the Australian version of the common law doctrine of aboriginal title.Native title is "the recognition by Australian law that some Indigenous people have rights and interests to their land that come from their traditional laws and customs"...
- Mabo v QueenslandMabo v QueenslandMabo v Queensland was a landmark High Court of Australia decision recognising native title in Australia for the first time...
- Wik Peoples v QueenslandWik Peoples v QueenslandWik Peoples v The State of Queensland is a decision of the High Court of Australia delivered on 23 December 1996 on whether statutory leases extinguish native title rights. The court found that the statutory pastoral leases under consideration by the court did not bestow rights of exclusive...
- Mabo v Queensland
- Bir TawilBir TawilBir Tawil or Bi'r Tawīl is a area along the border between Egypt and Sudan which is claimed by neither country. It is sometimes referred to as the Bir Tawil Triangle, despite the area's quadrilateral shape, with the longer side in the north of the area running along the 22° north circle of...
- Land claim
- Manifest destinyManifest DestinyManifest Destiny was the 19th century American belief that the United States was destined to expand across the continent. It was used by Democrat-Republicans in the 1840s to justify the war with Mexico; the concept was denounced by Whigs, and fell into disuse after the mid-19th century.Advocates of...
- Neutral territoryNeutral territoryA neutral territory is a territory that is not an integral part of any state , and yet is not terra nullius, but is the object of an agreement under international law between at least two parties...
- Res nullius (original and broader formulation in law)Res nulliusRes nullius is a Latin term derived from Roman law whereby res is not yet the object of rights of any specific subject. Such items are considered ownerless property and are usually free to be owned...
- Uncontacted people
- Uti possidetisUti possidetisUti possidetis is a principle in international law that territory and other property remains with its possessor at the end of a conflict, unless otherwise provided for by treaty; if such a treaty doesn't include conditions regarding the possession of property and territory taken during the war,...
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.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high%5fct/175clr1.html?query=title+%28+%22mabo%22+%29 High Court of Australia - MABO AND OTHERS v. QUEENSLAND (No. 2) (1992) 175 CLR 1 F.C. 92/014
- http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/HCA/1996/40.html?query=title%28wik+peoples+near+queensland%29 High Court of Australia - The WikWik peoplesThe Wik peoples are an Indigenous Australian group of people from an extensive zone on western Cape York Peninsula in northern Queensland, of several different language groups...
Peoples v The State of QueenslandQueenslandQueensland is a state of Australia, occupying the north-eastern section of the mainland continent. It is bordered by the Northern Territory, South Australia and New South Wales to the west, south-west and south respectively. To the east, Queensland is bordered by the Coral Sea and Pacific Ocean...
& Ors; The Thayorre People v The State of Queensland & Ors [1996] HCA 40 (23 December 1996) - http://www.icj-cij.org/icjwww/igeneralinformation/ibbook/Bbook8-2.15.htm 1975 International Court of Justice - Advisory Opinion regarding Western Sahara
- "History before European Settlement" Parliament of New South WalesParliament of New South WalesThe Parliament of New South Wales, located in Parliament House on Macquarie Street, Sydney, is the main legislative body in the Australian state of New South Wales . It is a bicameral parliament elected by the people of the state in general elections. The parliament shares law making powers with...
- note mis-spelling as "terra nulius" - material on terra nullius - NSW Primary School curriculumCurriculumSee also Syllabus.In formal education, a curriculum is the set of courses, and their content, offered at a school or university. As an idea, curriculum stems from the Latin word for race course, referring to the course of deeds and experiences through which children grow to become mature adults...
- http://www.law.mq.edu.au/scnsw/Cases1831-32/html/r_v_boatman_or_jackass_and_bul.htm 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)