-A Response to ‘Genealogy of Terra Nullius’ by Andrew Fitzmaurice
Chinna Aswathy Abraham – Senior Associate
The ‘Doctrine of Terra Nullius’- or nobody’s land- is an integral aspect of international law as we know it today and is often regarded as a technology of domination[1] used by the European colonial powers. Although commonly understood as having emerged in the early eighteenth and nineteenth century to justify dispossession[2], scholar Andrew Fitzmaurice has attempted to categorically prove that the ‘contemporary use of the idea of terra nullius is consistent with a tradition in which natural law was used to oppose colonisation in the sixteenth century’[3].
In order to better appreciate the contours of Fitzmaurice’s argument, it is necessary to step back to the sixteenth century Salamanca School. Francisco de Vitoria rejected the idea of divine law and replaced it with ‘natural law administered by a secular sovereign’ or a ‘jus gentium’[4]. According to him ‘questions of ownership and property are to be understood within the sphere of natural law.’ Vitoria argued that the law of the ‘first taker’[5] as prevalent under Roman law could not be used to justify the colonisation of the native Americans by the Spanish colonial powers, for which reason he is often considered the ‘protector of the native people.[6]
Interestingly, Vitoria also recognised the innate desire of humans to exploit nature and its resources and stated that the successful exploitation of these resources would establish property and dominion[7]. According to Fitzmaurice, this aspect of natural law was heavily relied on by the English colonial powers to justify the colonisation of the native peoples[8], by stating that natives had failed to exploit nature and therefore had failed to establish their humanity.[9]Fitzmaurice is of the opinion that terra nullius [10] spurted from this justification and is nothing but a ‘species of the law of the first taker or the res nullius’. Territory that was ‘res nullius’ could be lawfully acquired by a state through simple occupations and was described to that effect as ‘terra nullius’[11]
Thus, natural law arguments were on the one hand used as a defence of indigenous rights and on the other hand used to justify colonial dispossession[12]. If one were to accept the idea as put forward by Fitzmaurice, the ‘res nullius was always pregnant with terra nullius’[13].
On the other hand, critics of this view claim that terra nullius is a much younger concept, which did not become formalized before the end of the 19th century. Michael Connor for example calls terra nullius a ‘mythical notion’ or a ‘legal fiction’ and argues that the term was ‘injected into Australian political and legal debate only in the 1970s’[14]. Similarly, historian Merete Borch claims that terra nullius developed as a legal theory in the nineteenth century[15].
What is interesting here is how there is a lack of consensus even amongst the scholars as to the origin of the doctrine of terra nullius and its inception into modern international law. If it springs from the natural law arguments, the same would have an implication over the modern-day operation of the doctrine over uninhabited territories such as the outer space, as there is neither property nor sovereignty. This is a classic example of how the history and origin of concepts in international law can play a major role in understanding the extent of its modern-day operation.
Concepts such as ‘luna nullius’, ‘astra nullius’ and ‘celestial nullius’ have emerged from the term ‘terra nullius’.[16] It would mean that someone would have de facto ownership of an object in space if that person was able to exert control over the object and exclude others from it.[17] In other words, any person or nation that is able to successfully exploit or colonise resources in the space will most likely be able to defend their claim over it. The Outer Space Treaty, 1967[18] and The Moon Agreement, 1979[19] attempt to prevent nations and private entities from claiming property ownership rights in outer space.[20]
The Moon Agreement goes a step further by emphasising the principle of “Common Heritage of Mankind”, the idea that certain global resources such as the Moon and other celestial bodies, should benefit humanity as a whole[21]. It mandates international arrangements for exploitation, ensuring that these resources are used for the collective benefit of all humankind rather than individual states.[22] It represents an evolved understanding of common property by emphasizing equitable access and sustainable use.[23] However the Moon Agreement was never ratified by any of the main space powers and is to that extent a failure.
Similarly, in 1994, the International Seabed Authority (ISA)[24] was established under the United Nations Convention on the Law of the Sea (UNCLOS) to organize and control all mineral-resources related activities for the benefit of all humanity. However, major powers such as the United States of America, are yet to ratify the treaty and hence is not a member of the ISA.
On the other hand, the United States of America is not only a signatory to the Antarctic Treaty[25] which was signed in Washington in1959, but also played a major role in negotiating the same. This Treaty “suspends” any territorial claims made by countries over Antarctica. In other words, countries such as Argentina, Australia, Chile, France, New Zealand, Norway, the United Kingdom and the United States of America had already claimed sovereignty over portions of Antarctica. The Treaty simply freezes these claims, without recognizing or disputing them.
As per the website of the U.S Department of State[26], while the United States “maintains a basis to claim territory in Antarctica”, it has not made a claim. It also states that the United States does not recognize the territorial claims of the other countries.
Thus, modern international law not only recognizes, but also attempts to protect against claims of terra-nullius, regardless of its effectiveness. To this extent, the Doctrine of Terra Nullius cannot be regarded as simple legal fiction.
[1] The doctrine of terra nullius is regarded as one of the technologies used for domination under colonial international law by scholars such as Prof. B.S. Chimni.
[2] Fitzmaurice argues that the term ‘terra nullius’ was first used in the context of the Artic region in the late 19th century and later used to justify the disposition of the Australian Aboriginals. In Mabo v State of Queensland (1992) 175 CLR 1 the court rejected the doctrine of terra nullius and accepted the doctrine of native title in Australia.
[3] Andrew Fitzmaurice
[4] Antony Anghie
[5] Which was reified as the ‘doctrine of res nullius’ in the 18th and 19 century to refer to the status of conquered lands in the law of nations.
[6] Antony Anghie
[7] This desire to exploit resources to establish dominion in my opinion also manifests itself in the form of capital accumulation and exploitation in the post -colonial world.
[8] The English used the doctrine of terra nullius to justify the colonisation of Australia, New Zealand, Andaman and Nicobar islands etc.
[9] The argument therefore was not that these lands were totally uninhabited, but that these were not occupied enough to properly exploit the natural resources. In other words, that property is established only by use.
[10] Fitzmaurice argues that Terra nullius represented both an absence of property and an absence of sovereignty
[11] David Ritter- The Rejection of Terra Nullius in Mabo: A Critical Analysis
[12] Andrew Fitzmaurice
[13] Lauren Benton and Lisa Ford. Rage for Order: The British Empire and the Origins of International Law, 1800–1850. Andrew Fitzmaurice. Sovereignty, Property and Empire, 1500–2000. https://academic.oup.com/ejil/article/28/3/975/4616685
[14] Michael Connor, The Invention of Terra Nullius: Historical and Legal Fictions on the Foundation of Australia.
[15] Borch, Merete (2001). “Rethinking the Origins of Terra Nullius” (PDF). Australian Historical Studies (117): 222–239.
[16] W. Erlank, Rethinking Terra Nullius And Property Law In Space
[17] W.Erlank Rethinking Terra Nullius And Property Law In Space
[18] Th Treaty on Principles Governing the Activities of States in the Exploration and Uses of Outer Space, including the Moon and other Celestial Bodies, 1967.
[19] The Agreement Governing the Activities of States on the Moon and other Celestial Bodies, 1979.
[20] Based on the doctrine of ‘res communis’-the concept that outer space belongs to all of mankind as a whole and not a particular person or nation state.
[21] Christopher C Joyner, ‘The Concept of the Common Heritage of Mankind in International Law’ (1999) 13 Emory International Law Review 615, 620.
[22] E Arikoglu, ‘The Concept of Common Heritage of Mankind and Legal Status of Outer Space in International Law’ in BE Balin, VN Akun, and S Alis (eds), Proceedings for the First Symposium on Space Economy, Space Law and Space Sciences (2022) 109-116 https://doi.org/10.26650/PB/SS46PS01.2022.001.007
[23]Carol R Buxton, ‘Property in Outer Space: The Common Heritage of Mankind Principle vs. the First in Time, First in Right, Rule of Property’ (2004) 69 Journal of Air Law and Commerce 689.
[24] Home – International Seabed Authority
