TERRA NULLIUS: TRACING PHILOSOPHICAL ORIGINS TO FUTURE RESOLVE

Shreenath A. Khemka

Terra Nullius is a Latin doctrine of Roman law; the phrase comprises of two parts, which translate as following: land (terra); no (nullius). In contemporary application the doctrine would mean territories that are not under the sovereignty of any state.

  1. Euro Centric Model v. The Third World

It has been argued by David Ritter that the doctrine of terra nullius is an international law doctrine and not that of common law.[2] Such a distinction comes of note, because it has been argued that only lands occupied by civilised societies were seen to be ‘occupied’, and the lands under the indigenous population was seen as terra nullius.[3] Such was made under a systematic design of the European international legal system to propagate colonialism, while maintaining peace within the ‘continent’.[4]

1.1 Law of Civilised v. Law of Uncivilised

Having principally discussed the origins of the doctrine, it is important to understand how it was used in the international arena. Australia is a good example, being a continent nation cut-off from the rest of the world, housing an indigenous population, and abundant in colonial interests; terra nullius was discussed prominently from the late 1700s. From 1788, the occupation of Australia had begun by the British. There being only an indigenous population of the Aborigines without any political organisation akin to the British, the British directly acceded to the land, claiming failure to sign treaties.

Such claim was not principally acceptable to the courts, and hence in R v. Tommy[5] (and subsequently in R v. Boatman or Jackass and Bulleyes[6] and R v. Ballard[7]) the court recognised the legal sovereignty of the indigenous people and the application of their own laws, holding that natives would not be subjected to common law. Only when the issue concerned both, the native and the settler, then such would be subject to common law.

Such being the case, the domestic law; common law; principally restored the doctrine of terra nullius to that of occupatio—from a claim that could be acceptable when no civil society existed, to a claim only of the first. The other aspect of such a decision, was reflective of the Euro-centric model itself; that any area of conflicting jurisdictions (an international issue) would only be seen as per the European law (common law). Hence, as long as terra nullius was seen as a matter of separate jurisdiction, common law had no problem. But whence it became a matter of concurrent debate, then common law would permeate it.

The crown did not really bother with the non-application of the common law, as long as it was implicit that all of Australia belonged to them. However the Batman’s Treaty of 1835[8] sought to give the aborigines the territorial sovereignty, which went against the colonial policy. This document implicitly gave to the Aborigines territorial sovereignty. Soon after on August 26, the European Governor declared such agreement to be void on the ground that the Aborigines had no claim to land in Australia, all land having been claimed in the name of the Crown.

1.2 Judicial Naivety

Like all great plots, the usage of terra nullius was under great legal scrutiny. Although the term being one of Roman law, it was never used until 1788; the same being a straw man to validate the colonial claims on an unchartered continent.[9] In a native rights case known popularly as Mabo[10], the Australian court held that the common law permitted for the concept of a native title to the land, as opposed to the doctrine of terra nullius which allowed accession of land notwithstanding native claims. However the judgement also affirmed that the nature of the native land was determined by the connection under the traditional law or custom, but could be extinguished by governmental powers.

                     2. Terra Nullius In The Contemporary Era

There are predominantly two terra nullius that have survived to this date: Bir Tawil between Egypt and Sudan; and the Marie Byrd Land in Western Antarctica along with Queen Maud Land extension to the South Pole.

2.1 Bir Tawil—Lassitude Precocious

A small quadrilateral between Egypt and Sudan lays a land that is not claimed by any of the recognised states of the international legal system. Under the British occupation in 1899, the border for the two nations was set at the 22nd parallel; however it was later changed to an irregular administrative boundary in 1902. As a result of this conundrum, a part of Egypt became Sudanese territory, and vice versa. The politically favourable Hala’ib Triangle went to Sudan, while the decrypt Bir Tawil came to Egypt. In furtherance of the geo-political interests both the nations wish to gain permanent access to Hala’ib Triangle; Egypt keeping the 1899 political border, while the Sudanese promoting the 1902 administrative boundary. Due to the nature of their argumentation to gain the desired land, both of them are estopped from claiming Bir Tawil concurrently (because the two lands are available in exclusivity, either Bir Tawil or Hala’ib Triangle). Given the position of Bir Tawil, and its geographical physique; it is not feasible for any other state to lay claim on that land.

Being terra nullius, Bir Tawil has seen multiple attempts by non-state actors to claim sovereignty over the same. The recent case of Jeremiah Heaton, an American citizen, to plant a flag and claim it as the ‘Kingdom of North Sudan’, is one of the multiple examples. One benefit of terra nullius being a doctrine of international law, and not common law, is that it operates only in the international realm, and not the domestic. Hence, only states are entitled to claim the same. The European understanding of ‘state’ has been on territory, population, sovereignty, and government. The same being absent in claimants of Bir Tawil, it remains a terra nullius.

2.2 Limitations of the Doctrine

Two limitations of the doctrine of terra nullius can be seen in the application in Bir Tawil. First, the doctrine only limits itself to de jure claims, and not de facto. Hence, although Bir Tawil is under the administrative control of Egypt, it still remains a land that is unclaimed by any state’s sovereignty. Although the de facto claim is of Egypt; de jure, there is no claim. Similar is the situation in the Croatia–Serbia border dispute; where portions of land on the Danube River, although de jure unclaimed by both, are under de facto Croatian administration.

Second, such particularistic exemption of de jure claim to constitute terra nullius results in a precarious paradigm, where no one can enjoy such resource for the greater good of mankind, together. Permitting de facto control of Egypt enables political controversy (Because the border dispute will result in either one of the nation’s getting Bir Tawil; thus it is logically claimed, but not actually—paradoxical!) for using Bir Tawil for the common good of mankind, and it being simultaneously recognised as a terra nullius means that Egypt shall not lay a de jure claim to risk the loss of Hala’ib Triangle; the situation persisting forever.

2.3 ATS—Inefficacy Latent

The other significant terra nullius is observed in the Antarctic region—Marie Byrd Land and the Southern extension of Queen Maud Land to the South Pole. Although Antarctica had been found in 1820, it was only in 1908 the British for the first time asserted claims in parts of Antarctica in order to control whaling activities, which had shifted from the Falkland Islands to the farther south. As a result other nations also started to claim territories thereof; like: Argentina; Australia; Chile; France; New Zealand; Norway. Before other nations could lay claim to the terra nullius[11], Antarctica having no population at all, and not haven been claimed in its entirety; in 1959 the Antarctic Treaty was created, which froze all territorial claims to the continent. Hence claims that were made before 1959 could not be enlarged, (no nation did recede any claim) and no further claims could be made. As a result the remaining part of the Antarctic territory remained terra nullius to this date.

But Antarctica (the relevant portions) should no longer be seen as terra nullius. Although there is no political claim of any state over the same, there is now a customary claim of mankind (ATS allowing usage for common good). Such has to be seen in light of the decision of the Mabo judgement, which held that terra nullius did not operate on customary claims. Such a customary claim of mankind is seen in the principle of res communis and common heritage of mankind, which now equally extends to other territories which are beyond national jurisdiction—outer space; international airspace; international waters; international sea-bed. Such areas are also governed by treaty and customary international law.

_______________

[2]        The Rejection of Terra Nullis in Mabo: A Critical Analysis; Sydney Law Review 18, No. 1 (1996).

[3]        Rethinking the Origins of Terra Nullius, Meret Borch; available at: http://www.kooriweb.org/foley/resources/pdfs/76.pdf.

[4]        Such a doctrine was actually never used in any legal framework till then, but arguably acted as a principle for international outlook.

[5]        Monitor, 29 November 1827.

[6]        Sydney Gazette, 25 February 1832.

[7]        Sydney Gazette, 23 April 1829.

[8]   Batman’s Treaty; available at: http://ergo.slv.vic.gov.au/explore-history/colonial-melbourne/pioneers/batmans-treaty

[9]        Michael Connor, The Bulletin (Sydney); 20 August 2003.

[10]       (1992) 175 CLR 1; [1992] HCA 23.

[11]       Specifically the United States of America and USSR, as the Cold War transformed the international law doctrine into an arena of confrontations. So as long as one camp was being principally denied, the other was content with the same.

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