Terra Nullius

This excerpt adapts and builds on the "terra nullius" entry in Wex, published by the Legal Information Institute at Cornell Law School, available at https://www.law.cornell.edu/wex/terra_nullius, and published under the Creative Commons CC BY-NC-SA 2.5 license.

Terra nullius is a term that refers to a “territory without a master.” It is a term used in public international law to describe a space that can be inhabited but that does not belong to a state, meaning the land is not owned by anyone. In fact, when a State or an entity describes a land as a terra nullius, the land is in reality occupied – by a nation or a minority – but the term has oftentimes been used in order to legitimize state occupation and colonization. In international public law, when the definition terra nullius is given to a land, it can legally legitimize its occupation and acquisition of sovereignty by another nation, under the doctrine of discovery, which the International Court of Justice (ICJ) has approved as a legal method of acquisition of territory.

As Professor John Borrows observes, “Indigenous peoples across the world have long critiqued the idea that their lands were legally vacant when Europeans arrived on their shores,” but despite recent statements by Canada’s Supreme Court rejecting the doctrine of terra nullius “Canadian law still has terra nullius written all over it."¹