Editing Terra nullius (section)

== Historical claims of ''terra nullius'' ==
Several territories have been claimed to be ''terra nullius''. In a minority of those claims, international and domestic courts have ruled on whether the territory is or was ''terra nullius'' or not.

=== Africa ===
==== Burkina Faso and the Niger ====
A narrow strip of land adjacent to two territorial markers along the [[Burkina Faso–Niger border]] was claimed by neither country until the [[International Court of Justice]] settled a [[Burkina Faso–Niger Frontier Dispute case|more extensive territorial dispute]] in 2013. The former unclaimed territory was awarded to the [[Niger]].<ref name=ICJ-2013-04-16-jdgt>
{{Cite report
 |title=Frontier Dispute (Burkina Faso/Niger)
 |date=16 April 2013
 |series=Reports of Judgments, Advisory Opinions and Orders
 |publisher=International Court of Justice
 |url=http://www.icj-cij.org/en/case/149/judgments
 |access-date=4 August 2017
}}
</ref>

====Western Sahara====
{{Main|Advisory opinion on Western Sahara}}
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. The court found in [[advisory opinion on Western Sahara|its advisory opinion]] that Western Sahara was not ''terra nullius'' at that time.

===Asia===
====Pinnacle Islands (Diaoyu Islands/Senkaku Islands)====
A [[Senkaku Islands dispute|disputed archipelago]] in the [[East China Sea]], the uninhabited [[Senkaku Islands|Pinnacle Islands]], were claimed by [[Japan]] to have become part of [[Empire of Japan|its territory]] as ''terra nullius'' in January 1895, following the Japanese victory in the [[First Sino-Japanese War]]. However, this interpretation is not accepted by the [[China|People's Republic of China]] (PRC) and the [[Taiwan|Republic of China]] (Taiwan), both of whom claim sovereignty over the islands.

====Saudi–Iraqi neutral zone====
It was an area of {{cvt|7044|km2|sqmi ha acre}} on the border between [[Saudi Arabia]] and [[Ba'athist Iraq|Iraq]] within which the border between the two countries had not been settled. 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). An agreement to partition the neutral zone was reached by Iraqi and Saudi representatives on 26 December 1981, and approved by the Iraqi National Assembly on 28 January 1982. The territory was divided on an unknown date between 28 January and 30 July 1982.<ref name=":0"/> Notice was given to the United Nations in June 1991.<ref name=":0">{{cite web|url=https://www.cia.gov/library/readingroom/docs/CIA-RDP86T01017R000100470001-8.pdf|archive-url=https://web.archive.org/web/20170120010225/https://www.cia.gov/library/readingroom/docs/CIA-RDP86T01017R000100470001-8.pdf|url-status=dead|archive-date=2017-01-20|title=Saudi Arabia/Iraq: Neutral Zone Partitioned|publisher=CIA Directorate of Intelligence|date=1986-02-28|access-date=2020-10-22}}</ref><ref name="arch">{{cite web|author=Schofield, Richard|title=Arabian Boundary disputes, Archive Editions|publisher=Archive Editions|url=http://www.archiveeditions.co.uk/titledetails.asp?tid=34|access-date=29 January 2007|archive-url=https://web.archive.org/web/20080423153144/http://www.archiveeditions.co.uk/titledetails.asp?tid=34|archive-date=2008-04-23 |url-status=live }}</ref>
====Saudi–Kuwaiti neutral zone====
{{main|Saudi Arabian–Kuwaiti neutral zone}}The 1922 [[Uqair Protocol of 1922|Uqair Convention]] did not define a boundary between the Saudi Arabia's predecessor state, [[Sultanate of Nejd]], and Kuwait. This was due to the nomadic Bedouin tribes of the area, who largely didn't recognize national boundaries, and the limited economic potential of this area of desert. The discovery of oil in the area prompted the countries to negotiate a boundary. An initial agreement in 1965 was officially ratified in 1970, setting the current border.

====Scarborough Shoal (South China Sea)====
The [[China|People's Republic of China]], the [[Taiwan|Republic of China]] (Taiwan) and the [[Philippines]] claim [[Scarborough Shoal]], also known as Panatag Shoal or Huangyan Island ({{zh|s=黄岩岛|t=黃巖島|p=Huángyán Dǎo}}). The nearest landmass is the Philippine island of [[Luzon]] at 220&nbsp;km (119 nmi), located in the [[South China Sea]]. The Philippines claims it under the principle of ''terra nullius'' and the fact that it lies within its EEZ ([[exclusive economic zone]]). Meanwhile, both China and Taiwan claim the shoal based on historical records that Chinese fishermen had discovered and mapped the shoal since the 13th century.

Previously, the shoal was administered as part of [[Masinloc|Municipality of Masinloc]], [[Zambales|Province of Zambales]], by the Philippines. Since the [[Scarborough Shoal standoff]] in 2012, the shoal has been administered as part of [[Xisha District]], [[Sansha City]], [[Hainan Province]], by the People's Republic of China. Taiwan places the shoal under the administration of [[Cijin District]], [[Kaohsiung City]], but does not have control of the shoal.<ref>{{Cite web |last=Lin |first=Cheng-yi |date=19 February 2008 |title=Taiwan's Spratly Initiative in the South China Sea |url=http://www.asianresearch.org/articles/3115.html |url-status=dead |archive-url=https://web.archive.org/web/20110514104457/http://www.asianresearch.org/articles/3115.html |archive-date=14 May 2011 |access-date=6 March 2023 |website=Association for Asia Research}}</ref><ref>{{Cite web |date=7 July 2015 |website=[[Ministry of Foreign Affairs (Taiwan)|Taiwan Ministry of Foreign Affairs]] |title=Ministry of Foreign Affairs of the Republic of China (Taiwan) reiterates its position on the South China Sea |url=https://www.mofa.gov.tw/en/News_Content.aspx?n=1EADDCFD4C6EC567&s=EDEBCA08C7F51C98}}</ref>

The [[Permanent Court of Arbitration]] (PCA) denied the lawfulness of China's claim in 2016;<ref name=Schofield-2016-CSEA-38-3-339>
{{cite journal
 |last=Schofield |first=Clive
 |year=2016
 |title=A landmark decision in the South China Sea: The scope and implications of the Arbitral Tribunal's award
 |journal=Contemporary Southeast Asia
 |volume=38 |issue=3 |pages=339–348
 |doi=10.1355/cs38-3a
 |jstor=24916757 |s2cid=157502728
 |issn=0129-797X
}}
</ref><ref name=PCoA-2016-case-2013-19>
{{cite web
 |title=Case nr. 2013-19
 |year=2016
 |publisher=Permanent Court of Arbitration
 |url=https://docs.pca-cpa.org/2016/07/PH-CN-20160712-Award.pdf
}}
</ref><ref name=Johnson-2016-07-12-JT>
{{cite news
 |last=Johnson |first=Jesse
 |date=2016-07-12
 |title=Tribunal rejects Beijing's claims to South China Sea; Japan braces for reaction
 |newspaper=[[The Japan Times]]
 |language=en-US
 |url=https://www.japantimes.co.jp/news/2016/07/12/asia-pacific/tribunal-rules-chinese-claims-south-china-sea/
 |access-date=2020-08-20
}}
</ref><ref name=Perlez-2016-07-12-NYT>
{{cite news
 |last=Perlez |first=Jane
 |date=2016-07-12
 |title=Tribunal rejects Beijing's claims in South China sea
 |language=en-US
 |place=New York, NY
 |newspaper=[[The New York Times]]
 |issn=0362-4331
 |url=https://www.nytimes.com/2016/07/13/world/asia/south-china-sea-hague-ruling-philippines.html
 |access-date=2020-08-20
}}
</ref><ref name=Lawfare-2016-07-12-ruling>
{{Cite web
 |title=Tribunal issues landmark ruling in South China Sea arbitration
 |date=2016-07-12
 |website=Lawfare
 |language=en
 |url=https://www.lawfaremedia.org/article/tribunal-issues-landmark-ruling-south-china-sea-arbitration
 |access-date=2020-08-20
}}
</ref> China rejected the ruling, calling it "ill-founded".<ref name="BBC 2016">{{Cite news |date=12 July 2016 |title=South China Sea: Tribunal backs case against China brought by Philippines |publisher=BBC News |url=https://www.bbc.co.uk/news/world-asia-china-36771749 |url-status=live |access-date=21 June 2018 |archive-url=https://web.archive.org/web/20180620040633/https://www.bbc.co.uk/news/world-asia-china-36771749 |archive-date=20 June 2018}}</ref> In 2019, Taiwan also rejected the ruling and has sent more naval vessels to the area.<ref>{{Cite news |author1=Jun Mai |author2=Shi Jiangtao |date=12 July 2016 |title=Taiwan-controlled Taiping Island is a rock, says international court in South China Sea ruling |work=South China Morning Post |url=http://www.scmp.com/news/china/diplomacy-defence/article/1988990/taiwan-controlled-taiping-island-rock-says |url-status=live |access-date=2 July 2018 |archive-url=https://web.archive.org/web/20160715074244/http://www.scmp.com/news/china/diplomacy-defence/article/1988990/taiwan-controlled-taiping-island-rock-says |archive-date=15 July 2016}}</ref>
<ref>{{Cite news |last=Chow |first=Jermyn |date=12 July 2016 |title=Taiwan rejects South China Sea ruling, says will deploy another navy vessel to Taiping |work=[[The Straits Times]] |url=http://www.straitstimes.com/asia/east-asia/taiwan-rejects-south-china-sea-ruling-says-will-deploy-another-navy-vessel-to-itu-aba |url-status=live |access-date=2 July 2018 |archive-url=https://web.archive.org/web/20180617015244/https://www.straitstimes.com/asia/east-asia/taiwan-rejects-south-china-sea-ruling-says-will-deploy-another-navy-vessel-to-itu-aba |archive-date=17 June 2018}}</ref>

It has been speculated that Scarborough Shoal is a prime location for the construction of an artificial island{{citation needed|date=October 2019}} and Chinese ships have been seen in the vicinity of the shoal. However, analysis of photos has concluded that the ships lack dredging equipment and therefore represent no imminent threat of reclamation work.<ref name=Mollman-2016-09-11-Qz>
{{cite news
 |last=Mollman |first=Steve
 |date=11 September 2016
 |title= The "strategic triangle" that would allow Beijing to control the South China Sea
 |newspaper=Quartz
 |language=en-US
 |url=http://qz.com/775382/all-eyes-are-on-the-scarborough-shoal-the-reef-rimmed-lagoon-that-would-allow-beijing-to-control-the-south-china-sea/
 |access-date= 27 October 2016
}}
</ref>

===Europe===
====Ireland====
The term ''terra nullius'' has been applied by some modern academics in discussing the [[Plantations of Ireland|English colonisation of Ireland]], although the term is not used in the international law sense and is often used as an analogy. Griffen and Cogliano state that the English viewed Ireland as a ''terra nullius''.<ref>{{Cite book |first1=Patrick |last1=Griffin |first2=Francis D. |last2=Cogliano |url=https://books.google.com/books?id=LK4BEAAAQBAJ&dq=%22Terra+nullius%22+ireland&pg=PT198 |title=Ireland and America: Empire, Revolution, and Sovereignty|date=7 July 2021 |publisher=University of Virginia Press |isbn=9780813946023 |via=Google Books}}</ref> In ''The Irish Difference: A Tumultuous History of Ireland’s Breakup With Britain'', Fergal Tobin writes that "Ireland had no tradition of unified statehood and no culturally unified establishment. Indeed, it had never known any kind of political unity until a version of it was imposed by [[Oliver Cromwell|Cromwell]]'s sword […] So the English Protestant interest […] came to regard Ireland as a kind of ''terra nullius''."<ref>{{Cite book|url=https://books.google.com/books?id=T6ktEAAAQBAJ&dq=%22came+to+regard+ireland+as%22+nullius&pg=PT57|title=The Irish Difference: A Tumultuous History of Ireland's Breakup With Britain|first=Fergal|last=Tobin|date=14 April 2022 |publisher=[[Atlantic Books]]|isbn=9781838952624 |via=Google Books}}</ref> Similarly, Bruce McLeod writes in ''The Geography of Empire in English Literature, 1580-1745'' that "although the English were familiar with Ireland and its geography in comparison to North America, they treated Ireland as though it were ''terra nullius'' and thus easily and geometrically subdivided into territorial units."<ref>{{Cite book |url=https://books.google.com/books?id=JA8e7j4iw3sC&dq=%22although+the+english%22+%22terra+nullius%22+ireland&pg=PA53|title=The Geography of Empire in English Literature, 1580-1745|first=Bruce|last=McLeod|date=28 September 1999|publisher=Cambridge University Press|isbn=9780521660792 |via=Google Books}}</ref> 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." The semi-[[nomadism]] of the native Irish meant that some English judged them not to be productive users of land. However, Rolston and McVeigh state that Gerald made it clear that Ireland was acquired by conquest and not through the occupation of ''terra nullius''.<ref>{{Cite web |url=https://papers.ssrn.com/abstract=2635910 |title=Civilising the Irish|first1=Bill |last1=Rolston |first2=Robbie|last2=McVeigh |date=25 July 2009|ssrn=2635910 |via=papers.ssrn.com}}</ref>

====Rockall====
According to Ian Mitchell, [[Rockall]] was ''terra nullius'' until it was claimed by the [[United Kingdom]] in 1955.
It was formally annexed in 1972.<ref name=Mitchell-2012-IslesN>
{{cite book
 |first=Ian |last=Mitchell |author-link=Ian Mitchell (author)
 |date=2012
 |title=Isles of the North
 |page=232
 |publisher=[[Birlinn (publisher)|Birlinn]]
 |isbn=978-0-85790-099-9
 |url={{GBurl|id=QM-8BQAAQBAJ|pg=PT232}}
 |via=Google Books
}}
</ref><ref name=BBC-News-OnThisDay-21Sep>
{{cite news
 |title=21 September 1955: Britain claims Rockall
 |department=On This Day
 |website=[[BBC News]]
 |publisher=[[British Broadcasting Corporation]]
 |url=http://news.bbc.co.uk/onthisday/hi/dates/stories/september/21/newsid_4582000/4582327.stm
}}
</ref><ref name=Rockall-act-1972-02-10>
{{cite web
 |title=Island Of Rockall Act 1972
 |website=[[legislation.gov.uk]]
 |date=10 February 1972
 |url=http://www.legislation.gov.uk/ukpga/1972/2/pdfs/ukpga_19720002_en.pdf
}}</ref>

==== Sealand ====
In 1967, [[Paddy Roy Bates]] claimed an abandoned British anti-aircraft gun tower in the North Sea as the "[[Principality of Sealand]]". The structure is now within British territorial waters and no country recognises Sealand.<ref name="Ward-2000-06-05-BBC-News">{{cite news |first=Mark |last=Ward |date=5 June 2000 |title=Offshore and offline? |publisher=[[BBC News]] |department=UK |url=http://news.bbc.co.uk/1/hi/uk/778267.stm |url-status=live |access-date=2021-08-22 |archive-url=https://web.archive.org/web/20090222175031/http://news.bbc.co.uk/1/hi/uk/778267.stm |archive-date=22 February 2009}}</ref>

==== Svalbard ====
[[Denmark–Norway]], the [[Dutch Republic]], the [[Kingdom of Great Britain]], and the [[Kingdom of Scotland]] all claimed sovereignty over the archipelago of [[Svalbard]] in the seventeenth century, but none permanently occupied it. Expeditions from each of these polities visited Svalbard principally during the summer for [[whaling]], with the first two sending a few wintering parties in the 1620s and 1630s.{{sfn|Fitzmaurice|2007}}

During the 19th century, both [[Norway]] and [[Russia]] made strong claims to the archipelago. In 1909, Italian jurist Camille Piccioni described Spitzbergen, as it was then known, as ''terra nullius'':
{{blockquote|The issue would have been simpler if Spitzbergen, until now terra nullius, could have been attributed to a single state, for reasons of neighbouring or earlier occupation. But this is not the case and several powers can, for different reasons, make their claims to this territory which still has no master.<ref name=Piccioni-1909-RevueGen-XVI>{{cite book |first=Camille |last=Piccioni |year=1909 |title=Revue generale de droit international public |volume=XVI}}{{full citation needed|date=October 2023|reason=I believe this is a journal. Need at least page or title of article.}}</ref>}}

The territorial dispute was eventually resolved by the [[Svalbard Treaty]] of 9 February 1920 which recognized Norwegian sovereignty over the islands.

=== North America ===
==== Canada ====
{{See|Numbered treaties|Genocide of Indigenous peoples of Canada}}
[[Joseph Trutch]], the first [[Lieutenant Governor of British Columbia]], insisted that [[First Nations in Canada|First Nations]] had never owned land, and thus their land claims could safely be ignored. It is for this reason that most of [[British Columbia]] remains [[unceded land]].<ref name=Miller-2003-10-sht-comm>{{cite conference |first=Bruce Granville |last=Miller |date=October 2003 |title=A short commentary on land claims in BC |conference=11th Annual National Land Claims Workshop |publisher=Union of British Columbia Indian Chiefs |url=https://www.ubcic.bc.ca/a_short_commentary_on_land_claims_in_bc |access-date=7 January 2021}}</ref>

In ''[[R. v. Guerin|Guerin v. The Queen]]'', a [[Supreme Court of Canada|Canadian Supreme Court]] decision of 1984 on aboriginal rights, the Court stated that the government has a [[Fiduciary|fiduciary duty]] toward the First Nations of Canada and established aboriginal title to be a ''[[sui generis]]'' right. Since then there has been a more complicated debate and a general narrowing of the definition of "fiduciary duty".{{citation needed|date=July 2021}}

==== Eastern Greenland ====
[[Norway]] occupied and claimed parts of (then uninhabited) eastern [[Greenland]] in 1931, claiming that it constituted ''terra nullius'' and calling the territory [[Erik the Red's Land]].<ref name=Jacobs-2015-03-04>{{cite web |first=Frank |last=Jacobs |date=4 March 2015 |title=The cold war that wasn't: Norway annexes Greenland |website=Big Think (bigthink.com) |url=http://bigthink.com/strange-maps/the-cold-war-that-wasnt-norway-annexes-greenland |access-date= 30 March 2018}}</ref>

The [[Permanent Court of International Justice]] ruled against the Norwegian claim. The Norwegians accepted the ruling and withdrew their claim.

==== United States ====
A similar concept of "uncultivated land" was employed by [[John Quincy Adams]] to identify supposedly unclaimed [[wilderness]].<ref name=CMichU-HistLib-NtvAm-land-rt>{{cite report |title=A brief history of land transfers between American Indians and the United States Government |series=Native American Material / Treaty Rights |place=Mount Pleasant, MI |department=Clarke Historical Library |publisher=[[Central Michigan University]] |url=https://www.cmich.edu/library/clarke/ResearchResources/Native_American_Material/Treaty_Rights/Pages/New-Section---The-Land.aspx |access-date=21 November 2020}}</ref>

===== Guano Islands =====
The [[Guano Islands Act]] of 18 August 1856 enabled citizens of the U.S. to take possession of islands containing [[guano]] deposits. The islands can be located anywhere, so long as they are not occupied and not within the jurisdiction of other governments. It also empowers the [[President of the United States]] to use the military to protect such interests, and establishes the criminal jurisdiction of the United States.

=== Oceania ===
==== Australia ====
{{Further |Indigenous land rights in Australia|Genocide of Indigenous Australians}}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.<ref>{{Cite web |title=7 Feb 1788 – Colony of NSW formally proclaimed |url=https://www.records.nsw.gov.au/archives/magazine/onthisday/7-february-1788 |access-date=29 October 2022 |website=NSW Government, State archives and records}}</ref> At the time of British colonisation, Aboriginal Australians had occupied Australia for at least 50,000 years. They were complex [[hunter-gatherer]]s with diverse economies and societies and about 250 different language groups.<ref>{{cite journal |last=Williams |first=Elizabeth |year=2015 |title=Complex hunter-gatherers: a view from Australia |journal=Antiquity |publisher=Cambridge University Press |volume=61 |issue=232 |pages=310–321 |doi=10.1017/S0003598X00052182 |s2cid=162146349}}</ref><ref>Flood, Josephine (2019). ''The Original Australians''. Sydney: Allen and Unwin. p.&nbsp;217. {{ISBN|978-1760527075}}.</ref> The Aboriginal population of the Sydney area was an estimated 4,000 to 8,000 people who were organised in clans which occupied land with traditional boundaries.<ref>{{Cite book |last=Attenbrow |first=Val |title=Sydney's Aboriginal Past, investigating the archaeological and historical records |publisher=[[UNSW Press]] |year=2010 |isbn=978-1742231167 |edition=2nd |location=Sydney |pages=22–26}}</ref><ref name="Aboriginal people and place23">{{cite web |date=2013 |title=Aboriginal people and place |url=http://www.sydneybarani.com.au/sites/aboriginal-people-and-place/ |access-date=5 July 2014 |publisher=Sydney Barani|last1=Heiss|first1=Anita|last2=Gibson|first2=Melodie-Jane}}</ref>

There is debate over whether Australia was colonised by the British from 1788 on the basis that the land was ''terra nullius''. 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.{{sfn|Borch|2001|p=223}} 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.”{{sfn|Borch|2001|p=224}}

In [[Mabo v Queensland (No 2)|''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."{{sfn|"Mabo case"|1992|loc=per Dawson, para. 36}}

[[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 (author)|Barron Field]] and the Governor of [[New South Wales]] [[Lachlan Macquarie]]. The matter was referred to British Attorney General [[Samuel Shepherd]] and Solicitor General [[Robert Gifford, 1st Baron Gifford|Robert Gifford]] who advised that New South Wales had not been acquired by conquest or cession, but by possession as "desert and uninhabited".<ref name=Banner-2005>{{cite journal |first=Banner |last=Stuart |year=2005 |title=Why Terra Nullius? Anthropology and Property Law in Early Australia |journal=Law and History Review |volume=23 |issue=1 |pages=95–131 |doi=10.1017/S0738248000000067 |jstor=30042845 |s2cid=145484253}}</ref><ref name=Clemens-2018-10-The-Monthly>{{cite web |last=Justin |first=Clemens |title=Barron Field and the myth of terra nullius |website=The Monthly |date=October 2018 |url=https://www.themonthly.com.au/issue/2018/october/1538316000/justin-clemens/barron-field-and-myth-terra-nullius#mtr}}</ref>

In 1835, a [[Proclamation of Governor Bourke|Proclamation by Governor Bourke]] stated that British subjects could not obtain title over vacant Crown land directly from Aboriginal Australians.<ref>{{Cite web |title=Documenting Democracy |url=https://www.foundingdocs.gov.au/item-did-42.html |access-date=2022-09-18 |website=www.foundingdocs.gov.au}}</ref>

In ''R v Murrell'' (1836) Justice Burton of the Supreme Court of New South Wales stated, "although it might be granted that on the first taking possession of the Colony, the aborigines were entitled to be recognised as free and independent, yet they were not in such a position with regard to strength as to be considered free and independent tribes. They had no sovereignty."{{sfn|Borch|2001|p=236}}

In the Privy Council case ''Cooper v Stuart'' (1889), Lord Watson stated that New South Wales was, "a tract of territory practically unoccupied, without settled inhabitants or settled law, at the time when it was peacefully annexed to the British dominions."{{sfn|"Mabo case"|1992|loc=per Brennan, para. 36}}

In the [[Mabo v Queensland (No 2)|Mabo Case]] (1992), the [[High Court of Australia]] considered the question of whether Australia had been colonised by Britain on the basis that it was ''terra nullius''. The court did not consider the legality of the initial colonisation as this was a matter of international law and, "The acquisition of territory by a sovereign state for the first time is an act of state which cannot be challenged, controlled or interfered with by the courts of that state."{{sfn|"Mabo case"|1992|loc=per Brennan, paras. 31–32}} The questions for decision included the implications of the initial colonisation for the transmission of the common law to New South Wales and whether the common law recognised that the Indigenous inhabitants had any form of native title to land. 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]].{{sfn|"Mabo case"|1992|loc=per Brennan, paras. 36, 46, 63}} The court found that the common law of Australia recognised a form of native title held by the Indigenous peoples of Australia and that this title persisted unless extinguished by a valid exercise of sovereign power inconsistent with the continued right to enjoy native title.{{sfn|"Mabo case"|1992|loc=per Brennan, para. 83}}

==== Clipperton Island ====
The sovereignty of [[Clipperton Island]] was settled by arbitration between [[Second French Empire|France]] and [[Mexico]]. 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. The Mexican claim was rejected for lack of proof of prior Spanish discovery and, in any event, no effective occupation by Mexico before 1858, when the island was therefore ''territorium nullius'', and the French occupation then was sufficient and legally continuing.<ref name=Ireland-1941-Bdrys-Posn-Confl>{{cite book |last=Ireland |first=Gordon |year=1941 |title=Boundaries, Possessions, and Conflicts in Central and North America and the Caribbean |page=320 |publisher=Octagon Books |place=New York, NY}}</ref>

==== South Island of New Zealand ====
In 1840, the newly appointed [[lieutenant governor|Lieutenant-Governor]] of [[New Zealand]], Captain [[William Hobson]] of the [[Royal Navy]], following instructions from the British government, declared sovereignty over the Middle Island (later called the [[South Island]]) and [[Stewart Island]] on the basis they were ''terra nullius''.{{citation needed|date=October 2021}}

=== South America ===
==== Patagonia ====
[[Patagonia]] was according to some considerations regarded a ''terra nullius'' in the 19th century. 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".<ref name="NahuelpánMoreno-AntimilCaniupán-2019">{{cite journal |last1=Nahuelpán Moreno |first1=Héctor Javier |last2=Antimil Caniupán |first2=Jaime Anedo |year=2019 |title=Colonialismo republicano, violencia y subordinación racial mapuche en Chile durante el siglo XX |language=es |trans-title=Republican Colonialism, Violence and Mapuche Racial Subordination in Chile during the Twentieth Century |journal=Revista de historia regional y local |volume=11 |issue=21 |pages=211–248 |via=Dialnet |doi=10.15446/historelo.v11n21.71500 |doi-access=free |url=https://dialnet.unirioja.es/servlet/articulo?codigo=6794837}}</ref>