Terra nullius

[2] 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.

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.

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.

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.

[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.

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.

[18] 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.

Herman Eduard von Hoist, wrote, “Contoy was not, in an international sense, a desert, that is an abandoned island and hence terra nullius.

"[27] 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.

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.

[35] At the request of Morocco, the International Court of Justice in 1975 addressed whether Western Sahara was terra nullius at the time of Spanish colonization in 1885.

A disputed archipelago in the East China Sea, the uninhabited Pinnacle Islands, were claimed by Japan to have become part of its territory as terra nullius in January 1895, following the Japanese victory in the First Sino-Japanese War.

The neutral zone came into existence following the Uqair Protocol of 1922 that defined the border between Iraq and the Sultanate of Nejd (Saudi Arabia's predecessor state).

"[51] Rolston and McVeigh trace this attitude back to Gerald of Wales (13th century), who wrote "This people despises work on the land, has little use for the money-making of towns, contemns the rights and privileges of citizenship, and desires neither to abandon, nor lose respect for, the life which it has been accustomed to lead in the woods and countryside."

However, Rolston and McVeigh state that Gerald made it clear that Ireland was acquired by conquest and not through the occupation of terra nullius.

[53][54][55] In 1967, Paddy Roy Bates claimed an abandoned British anti-aircraft gun tower in the North Sea as the "Principality of Sealand".

The British penal colony of New South Wales, which included more than half of mainland Australia, was proclaimed by Governor Captain Arthur Phillip at Sydney in February 1788.

Frost, Attwood and others argue that even though the term terra nullius was not used in the eighteenth century, there was widespread acceptance of the concept that a state could acquire territory through occupation of land that was not already under sovereignty and was uninhabited or inhabited by peoples who had not developed permanent settlements, agriculture, property rights or political organisation recognised by European states.

[67] Borch, however, states that, "it seems much more likely that there was no legal doctrine maintaining that inhabited land could be regarded as ownerless, nor was this the basis of official policy, in the eighteenth century or before.

Rather it seems to have developed as a legal theory in the nineteenth century.”[68] In Mabo v Queensland (No 2) (1992), Justice Dawson stated, "Upon any account, the policy which was implemented and the laws which were passed in New South Wales make it plain that, from the inception of the colony, the Crown treated all land in the colony as unoccupied and afforded no recognition to any form of native interest in the land.

"[69] Stuart Banner states that the first known Australian legal use of the concept (although not the term) terra nullius was in 1819 in a tax dispute between Barron Field and the Governor of New South Wales Lachlan Macquarie.

[70][71] In 1835, a Proclamation by Governor Bourke stated that British subjects could not obtain title over vacant Crown land directly from Aboriginal Australians.

Dismissing a number of previous authorities, the court rejected the "enlarged notion of terra nullius", by which lands inhabited by Indigenous peoples could be considered desert and uninhabited for the purposes of Australian municipal law.

King Victor Emmanuel III of Italy rendered a decision in 1931 that the sovereignty of Clipperton Island belongs to France from the date of November 17, 1858.

This notion ignored the Spanish Crown's recognition of indigenous Mapuche sovereignty and is considered by scholars Nahuelpán and Antimil to have set the stage for an era of Chilean "republican colonialism".