NationMaster - Encyclopedia: Terra nullius

Terra nullius (English pronunciation IPA: /ˈtɛrə nəˈlaɪəs/, Latin pronunciation IPA: [ˈtɛrːa nʊlːˈiʊs]) is a Latin expression deriving from Roman Law meaning "land belonging to no one", "nobody's land" i.e. "empty land", applying the general principle of res nullius to real estate, in terms of private ownership and/or as territory under public law. The English language is a West Germanic language that originates in England. ... For other uses, see Latins and Latin (disambiguation). ... For other uses, see Latins and Latin (disambiguation). ... Using the term Roman law in a broader sense, one may say that Roman law is not only the legal system of ancient Rome but the law that was applied throughout most of Europe until the end of the 18th century. ... Res nullius is a principle by which a nation may assert control of an unclaimed territory. ...

Rationale

Modern applications of the term terra nullius stem from 16th and 17th century doctrines describing land that was unclaimed by a sovereign state recognized by European powers. This modern term refers to a specific application of the concept of res nullius. (15th century - 16th century - 17th century - more centuries) As a means of recording the passage of time, the 16th century was that century which lasted from 1501 to 1600. ... (16th century - 17th century - 18th century - more centuries) As a means of recording the passage of time, the 17th century was that century which lasted from 1601-1700. ... For other uses, see Europe (disambiguation). ...

During the era of European colonialism the doctrine gave legal force to the claiming and settlement of lands occupied by "backward" people, where no system of laws or ownership of property was held to exist. The Swiss philosopher and international law theorist Emerich de Vattel, building on the philosophy of John Locke and others, proposed that terra nullius applied to uncultivated land. As the indigenous people were not (in this view) using the land, those who could cultivate the land had a right to claim it.^{[citation needed]} It has been suggested that Benign colonialism be merged into this article or section. ... Swiss may be: Related to Switzerland: the Swiss Confederation Swiss people Swiss cheese Swiss corporations Switzerland-related topics Named Swiss: Swiss, Missouri Swiss, North Carolina Swiss, West Virginia Swiss, Wisconsin Swiss International Air Lines Swiss Re SWiSS is also used as a disparaging nickname for the Socialist Workers Student Society. ... A philosopher is a person who thinks deeply regarding people, society, the world, and/or the universe. ... Providing a constitution for public international law, the United Nations was conceived during World War II International law is the term commonly used for referring to the system of implicit and explicit agreements that binds together nation-states in adherence to recognized values and standards, differing from other legal systems... Emer(Emmerich) de Vattel (April 25, 1714 - December 28, 1767) was a Swiss philosopher, diplomat, and legal expert whose theories laid the foundation of modern international law and political philosophy. ... For other persons named John Locke, see John Locke (disambiguation). ...

History in Australia

Indigenous Australians were known to inhabit the continent and to have unwritten legal codes, as in the case of the Aboriginal people of the Yirrkala community. Language(s) Several hundred Indigenous Australian languages (many extinct or nearly so), Australian English, Australian Aboriginal English, Torres Strait Creole, Kriol Religion(s) Primarily Christian, with minorities of other religions including various forms of Traditional belief systems based around the Dreamtime Related ethnic groups see List of Indigenous Australian group... Yirrkala is a well-known indigenous community in Arnhem Land, in the Northern Territory of Australia, at 12. ...

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). is the 332nd day of the year (333rd in leap years) in the Gregorian calendar. ... Year 1827 (MDCCCXXVII) was a common year starting on Monday (link will display the full calendar) of the Gregorian Calendar (or a common year starting on Wednesday of the 12-day slower Julian calendar). ... is the 56th day of the year in the Gregorian calendar. ... Year 1832 (MDCCCXXXII) was a leap year starting on Sunday (link will display the full calendar) of the Gregorian Calendar (or a leap year starting on Friday of the 12-day slower Julian calendar). ... is the 113th day of the year (114th in leap years) in the Gregorian calendar. ... Johann Wolfgang von Goethe 1829 was a common year starting on Thursday (see link for calendar). ...

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.^[1] Events The city of Melbourne is founded by John Batman and John Pascoe Fawkner. ... Lieutenant-General Sir Richard Bourke, KCB General Sir Richard Bourke KCB (Dublin, 4 May 1777 â€“ 13 August 1855, Limerick) was Governor of the Colony of New South Wales, Australia between 1831 and 1837. ... Language(s) Several hundred Indigenous Australian languages (many extinct or nearly so), Australian English, Australian Aboriginal English, Torres Strait Creole, Kriol Religion(s) Primarily Christian, with minorities of other religions including various forms of Traditional belief systems based around the Dreamtime Related ethnic groups see List of Indigenous Australian group... Crown land is a designated area belonging to the Crown, 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 until the decision of Cooper v Stuart in 1889, some fifty three years later. [1] The Supreme Court of New South Wales is the superior court for the Australian State of New South Wales. ... is the 101st day of the year (102nd in leap years) in the Gregorian calendar. ... Year 1836 (MDCCCXXXVI) was a leap year starting on Friday (link will display the full calendar) of the Gregorian Calendar (or a leap year starting on Wednesday of the 12-day slower Julian calendar). ... The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. ...

However, it has been claimed that the concept was only brought to prominence by its critics 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".^{[citation needed]} This article concerns the common-law legal system, as contrasted with the civil law legal system; for other meanings of the term, within the field of law, see common law (disambiguation). ... Barbarian was originally a Greek term applied to any foreigner, one not sharing a recognized culture or degree of polish with the speaker or writer employing the term. ...

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". In December 1968, the Yolngu people living in Yirrkala, who were the traditional owners of the Gove Peninsula in Arnhem Land, obtained writs in the Northern Territory Supreme Court against the Nabalco Corporation, which had secured a twelve-year bauxite mining lease from the Federal Government. ... Native title is a concept in the law of Australia that recognises the continued ownership of land by local Indigenous Australians. ... // This article or section does not cite its references or sources. ...

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 Australia 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. Mabo v Queensland (No 2) (commonly known as Mabo) is a landmark Australian court case which was decided by the High Court of Australia on June 3, 1992. ... High Court entrance The High Court of Australia is the final court of appeal in Australia, the highest court in the Australian court hierarchy. ...

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. Wik is a village in the outskirts of Hamar, it is considered the center of the area called Ã˜vre Vang. ... The Wik Decision is a decision of the High Court of Australia in Wik Peoples v. ...

The court's ruling in Mabo has enabled some Aboriginal peoples to reclaim 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. One very recent example is that of a December 2004 case in which the Noonkanbah people were recognised as the traditional owners of a 1,811 km² plot of land in Western Australia. In the Northern Territory, 40 per cent of the land and most of its coastline is now in the hands of Aboriginal peoples. Aboriginal land claims are claims of Native or Aboriginal peoples (also referred to as Indigenous peoples) about their ownership of land before the arrival of settlers, primarily Europeans. ... Slogan or Nickname: Wildflower State or the Golden State Other Australian states and territories Capital Perth Government Constitutional monarchy Governor Ken Michael Premier Alan Carpenter (ALP) Federal representation - House seats 15 - Senate seats 12 Gross State Product (2005-06) - Product ($m) $107,910 (4th) - Product per capita $53,134/person... For similar terms, see Northern Territories (disambiguation) Slogan or Nickname: The Territory, The NT, The Top End Motto(s): none Other Australian states and territories Capital Darwin Government Constitutional monarchy Administrator Ted Egan Chief Minister Clare Martin (ALP) Federal representation - House seats 2 - Senate seats 2 Gross Territorial Product (2004...

Terra nullius elsewhere

Terra nullius was still relevant to international law 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. Providing a constitution for public international law, the United Nations was conceived during World War II International law is the term commonly used for referring to the system of implicit and explicit agreements that binds together nation-states in adherence to recognized values and standards, differing from other legal systems... United Nations General Assembly The United Nations General Assembly is one of the six principal organs of the United Nations. ... The International Court of Justice (known colloquially as the World Court or ICJ; French: ) is the primary judicial organ of the United Nations. ... RÃo de Oro (Spanish for Gold River, Arabic: wÄdÄ«-Ã°-Ã°ahab, often transliterated as Oued Edhahab), is, with Saguia el-Hamra, one of the two territories that formed the Spanish province of Spanish Sahara after 1969. ... This region of Western Sahara makes up the northern third of the country. ... It has been suggested that this article or section be merged with Colonialism. ...

Norway occupied and claimed parts of (then uninhabited) Eastern Greenland in the 1920s, claiming that it constituted terra nullius. The matter was later settled in the Permanent Court of International Justice by 1933. The Permanent Court of International Justice, sometimes called World Court, was the international court of the League of Nations established in 1922. ...

Another example of a terra nullius is Antarctica, none of which has yet been capable of supporting human habitation without supplies from the outside world.

It was thus res nullius or terra nullius that could be "acquired by any state in a position to assert effective and stable control without resort to unlawful means" [2]

The Philippines 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 claim it by the principle of terra nullius and EEZ (Exclusive Economic Zone). China claims these territories because, in the 13th century, their fishermen first discovered it. The Scarborough Shoal, more correctly described as a group of islands, atolls, and reefs then a shoal, is located in the Luzon Sea (South China Sea). ... Map of the Philippines showing the island groups of Luzon, Visayas, and Mindanao. ... Filipino name Tagalog: Timog Dagat Tsina (Dagat Luzon for the portion within Philippine waters) Malay name Malay: Laut China Selatan Portuguese name Portuguese: Mar da China Meridional Vietnamese name Vietnamese: The South China Sea is a marginal sea south of China. ... Sea areas in international rights Under the law of the sea, an Exclusive Economic Zone (EEZ) is a seazone over which a state has special rights over the exploration and use of marine resources. ...

See also

Aboriginal land claims are claims of Native or Aboriginal peoples (also referred to as Indigenous peoples) about their ownership of land before the arrival of settlers, primarily Europeans. ... Henry A. Reynolds, (born March 1, 1938), is an eminent Australian historian whose primary work has focused on the frontier conflict between European settlement of Australia and indigenous Australians. ... The History wars are an ongoing public debate over the interpretation of the history of the white colonisation of Australia and its influence on responses to the current situation of the original inhabitants of the land. ... Native title is a concept in the law of Australia that recognises the continued ownership of land by local Indigenous Australians. ... Mabo v Queensland (No 2) (commonly known as Mabo) was a landmark Australian court case which was decided by the High Court of Australia on June 3, 1992. ... The Wik Decision is a decision of the High Court of Australia in Wik Peoples v. ... This article is about the history and influence of the concept. ... A Neutral territory is a territory (not a sovereign state) that is not an integral part of any state (neither independent, nor dependent on a single state, nor colonized or under protectorate, nor a concession (territory)) ...), nor under joint rule (unlike a condominium), and yet is not terra nullius, but... Francisco de Vitoria Francisco de Vitoria, Statue before San Esteban, Salamanca Statue of Francisco de Vitoria, in Vitoria-Gasteiz Francisco de Vitoria (Francisci de Victoria; c. ... Res nullius is a principle by which a nation may assert control of an unclaimed territory. ... The Principality of Sealand is a micronation located on HM Fort Roughs, a former World War II Maunsell Sea Fort in the North Sea 10 km (six miles) off the coast of Suffolk, England, United Kingdom. ...

External links

Wik is a village in the outskirts of Hamar, it is considered the center of the area called Ã˜vre Vang. ... Slogan or Nickname: Sunshine State, Smart State Motto(s): Audax at Fidelis (Bold but Faithful) Other Australian states and territories Capital Brisbane Government Constitutional monarchy Governor Quentin Bryce Premier Anna Bligh (ALP) Federal representation - House seats 28 - Senate seats 12 Gross State Product (2004-05) - Product ($m) $158,506 (3rd... is the 357th day of the year (358th in leap years) in the Gregorian calendar. ... Year 1975 (MCMLXXV) was a common year starting on Wednesday (link will display full calendar) of the Gregorian calendar. ... The Parliament of New South Wales consists of the Governor of New South Wales, the New South Wales Legislative Council and the New South Wales Legislative Assembly. ... A primary school in ÄŒeskÃ½ TÄ›Å¡Ãn, Czech Republic. ... For a curriculum vitae, see RÃ©sumÃ©. In formal education, a curriculum (plural curricula) is the set of courses, and their content, offered at a school or university. ...

References

^ Governor Bourke's Proclamation 1835 (UK). Documenting a Democracy: 110 key documents that are the foundation of our nation. National Archives of Australia. Retrieved on 2008-03-05. “This document implemented the doctrine of terra nullius upon which British settlement was based, reinforcing the notion that the land belonged to no one prior the British Crown taking possession of it. Aboriginal people therefore could not sell or assign the land, nor could an individual person acquire it, other than through distribution by the Crown. ... Although many people at the time also recognised that the Aboriginal occupants had rights in the lands (and this was confirmed in a House of Commons report on Aboriginal relations in 1837), the law followed and almost always applied the principles expressed in Bourke's proclamation. This would not change until the Australian High Court's decision in the Mabo Case in 1992.”

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