Terra nullius
Terra nullius is a Latin expression meaning "nobody's land". Since the nineteenth century, it has occasionally been used in international law as a principle to justify claims that territory may be acquired by a state's occupation of it. There are currently three territories sometimes claimed to be terra nullius: Bir Tawil, four pockets of land near the Danube due to the Croatia–Serbia border dispute, and parts of Antarctica, principally Marie Byrd Land.
Doctrine
In international law, terra nullius is territory which belongs to no state. Sovereignty over territory which is terra nullius can be acquired by any state by occupation. According to Oppenheim: "The only territory which can be the object of occupation is that which does not already belong to another state, whether it is uninhabited, or inhabited by persons whose community is not considered to be a state; for individuals may live on a territory without forming themselves into a state proper exercising sovereignty over such territory."Occupation of terra nullius is one of several ways in which a state can acquire territory under international law. The other means of acquiring territory are conquest, cession by agreement, accretion through the operations of nature, and prescription through the continuous exercise of sovereignty.
History
Although the term terra nullius was not used in international law before the late nineteenth century, 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, 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.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. 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. 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."
Alberico Gentili, in his De Jure Belli Libri Tres, 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. 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."
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."
Several years before Blackstone, Emer de Vattel, in his Le droit des gents, drew a distinction between land that was effectively occupied and cultivated, and the unsettled and uncultivated land of nomads which was open to colonisation.
Borch states that many commentators erroneously interpreted this to mean that any uncultivated lands, whether inhabited or not, could be claimed by a colonising state by right of occupancy. Borch places the shift towards the view that "uncultivated" but inhabited lands were terra nullius primarily in the 19th century, and argues it was a result of political developments and the rise of new intellectual currents such as scientific racism and legal positivism.
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.
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." In 1888, the Institut de Droit International introduced the concept of territorium nullius as a public law equivalent to the private law concept of res nullius.
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.
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. 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.
The term terra nullius was adopted by the International Court of Justice in its 1975 Western Sahara advisory opinion. 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'." 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.
Current claims of ''terra nullius''
There are four current instances where land is sometimes claimed to be terra nullius: Bir Tawil bordering Egypt and the Sudan, four small areas along the Croatia–Serbia border, the Palestinian territories and Marie Byrd Land in Antarctica.Bir Tawil
Between Egypt and the Sudan is the landlocked territory of Bir Tawil, which was created by a discrepancy between borders drawn in 1899 and 1902. One border placed Bir Tawil under the Sudan's control and the Halaib Triangle under Egypt's; the other border did the reverse. Each country asserts the border that would give it the much larger Halaib Triangle, to the east, which is adjacent to the Red Sea, with the side effect that Bir Tawil is unclaimed by either country. Bir Tawil has no settled population, but the land is used by Bedouins who roam the area.Gornja Siga and other pockets
and Serbia dispute several small areas on the east bank of the Danube. However, four pockets on the western river bank, of which Gornja Siga is the largest, are not claimed by either country. Serbia makes no claims on the land while Croatia states that the land belongs to Serbia. Croatia states that the disputed area is not terra nullius and they are negotiating with Serbia to settle the border.Marie Byrd Land
While several countries made claims to parts of Antarctica in the first half of the 20th century, the remainder, including most of Marie Byrd Land, has not been claimed by any sovereign state. 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 in the future.An undefined area from 20°W to 45°E was historically considered potentially unclaimed; the Norwegian claim in Queen Maud Land was interpreted as covering the coastal regions, but not continuing all the way to the South Pole. In 2015, the claim was extended to reach as far as 90°S.