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Res nullius

Res nullius, Latin for "nobody's thing," denotes in Roman law a category of property or resources lacking an owner, thereby susceptible to acquisition through occupation by the initial possessor.^[1] Under this principle, items such as wild animals, fish in the sea, or abandoned goods qualify as res nullius until captured or claimed, with ownership vesting via acts of physical control and intent to possess, as outlined in classical texts like the Digest of Justinian.^[2] Distinct from res communes—things inherently common to all humanity, such as the air or open seas—res nullius permits private appropriation, reflecting a foundational mode of original title formation in civil law traditions.^[3] The doctrine originated in republican Roman jurisprudence and was systematized in the imperial era, influencing the ius gentium (law of nations) as a universal norm for unowned movables.^[4] Early modern natural law scholars, including Hugo Grotius, extended res nullius to territorial acquisition, positing that uninhabited lands or those without effective sovereign control could be seized by discovery and settlement.^[2] This adaptation underpinned European colonial expansions, where the cognate terra nullius (无人土地) was controversially applied to inhabited regions, disregarding indigenous tenure systems as insufficiently "civilized" under Eurocentric criteria—a practice later repudiated in cases like Australia's Mabo decision for fabricating legal fictions to enable dispossession.^[5]^[6] In contemporary contexts, res nullius informs debates on extraterrestrial resources, with analogies debated in space law to prohibit unilateral claims absent international treaty, prioritizing res communes for celestial bodies.^[3] Despite its enduring role in property theory, the principle's historical misuse highlights tensions between empirical possession and normative sovereignty, underscoring causal realities of power imbalances in legal application over abstract doctrine.^[4]

Etymology and Core Concept

Definition in Roman Law

In Roman law, res nullius referred to corporeal things belonging to no one, which were capable of private ownership but had not yet been appropriated by any individual. This category encompassed objects unclaimed by prior dominion, such as wild animals in their natural habitat or items formally abandoned by their owners through dereliction. The concept formed the basis for occupatio, an original mode of acquiring dominium (full ownership) by the first person to seize physical possession with the intent to own, as derived from the ius gentium—law common to all nations.^[7] The foundational principle appears in Justinian's Digest (41.1.3.pr.), stating "res nullius naturaliter fit primi occupantis"—a thing belonging to no one naturally becomes the property of the first occupant. This maxim, attributed to the jurist Nerva, underscored that acquisition required effective control, such as capturing a wild beast or capturing fish from the sea, after which the thing entered the occupier's patrimony and could be alienated or defended via actions like the rei vindicatio. Jurists like Gaius and Ulpian clarified that mere pursuit without capture did not confer ownership, preventing disputes over transient claims.^[7] Res nullius was distinguished from res extra commercium, including res communes omnium (things common to all, like air or the sea, incapable of ownership) and res divini iuris (sacred or public things reserved to gods or the state). While res nullius items like pearls or birds could transition to private property upon occupation, public rivers or temples could not, reflecting Roman classifications in the Institutes of Justinian (2.1) that prioritized utility and natural reason in property formation. This framework, codified under Emperor Justinian I around 533 CE, integrated pre-classical customs with imperial jurisprudence to resolve claims over unowned resources.^[7] Res nullius, denoting property without an owner and susceptible to acquisition through occupation (occupatio), differs fundamentally from res communes, which comprise things common to all humanity and inherently incapable of private ownership or exclusive appropriation, such as the air, sunlight, and the high seas beyond territorial limits. While res nullius—exemplified by wild animals, fish in open waters, or uncaptured minerals—can be reduced to individual dominion by the first effective seizure, res communes elude such control due to their inexhaustible or indivisible nature, remaining perpetually outside the realm of proprietary rights. This distinction underscores Roman law's recognition that not all unowned entities invite ownership; res communes sustain universal access without depletion, as articulated in Justinian's Institutes. In contrast to res publicae, which are collectively owned by the state or the Roman people (populus Romanus) and thus not unowned, res nullius lacks any prior or communal title, enabling private seizure where res publicae—including navigable rivers, public roads, harbors, and bridges—remain inalienable and open to public use under civic authority. Res publicae embody sovereign or popular dominion, often derived from imperial grants or customary law, prohibiting individual claims that res nullius permits through natural law principles of first occupancy. For instance, the Tiber River as a res publica could not be privatized, whereas a beached whale (res nullius) could be claimed by the finder upon possession. Res nullius also merits separation from res derelicta, the latter signifying property deliberately abandoned (derelictio) by its prior owner with intent to relinquish title, thereby transitioning to res nullius status and becoming acquirable by any occupier.^[8] True res nullius, however, applies to entities never subjected to ownership, such as feral beasts or undiscovered resources, without the element of prior dominion and voluntary forfeiture inherent in derelicta.^[8] Roman jurists, including those compiling the Digest, emphasized that acquisition of res derelicta required both physical corpus (taking) and animus (intent to own), mirroring occupatio of res nullius but rooted in the abandonment act codified under Justinian around 533 CE.^[9] This nuanced divergence highlights res nullius as a baseline category for pristine unownership, distinct from the transformative process of dereliction.^[8]

Historical Origins and Evolution

Roman Legal Framework

In Roman jurisprudence, res nullius designated corporeal things lacking an owner and thus available for acquisition by any capable person through occupatio, the act of physical seizure coupled with intent to possess as owner (animus possidendi). This mode of original acquisition stemmed from principles of natural reason and the ius gentium (law of nations), distinguishing it from derivative modes like tradition or mancipation.^[10] Classical jurists emphasized that res nullius became property upon the first effective taking, without requiring prior title.^[11] Gaius, writing around 161 AD in his Institutes (Book 2.66), articulated the foundational precept: things previously belonging to no one (res nullius) are acquired by the first taker, encompassing items found on land, sea, or air.^[10] This view, echoed by Ulpian and others in the Digest, integrated occupatio into the broader taxonomy of things (res), classifying res nullius as potentially ownable but currently unowned, in contrast to res communes (e.g., air, running water) immune to private dominion.^[10] Emperor Justinian I codified these principles in 533 AD within the Corpus Iuris Civilis, particularly Institutes 2.1.12, affirming that the right to occupy res nullius arises from natural equity, as "wild beasts, birds, fish, and the like" revert to res nullius upon escaping control and are reclaimed by capture.^[12] The Digest (41.1.3 pr.) further elaborated procedural nuances, such as the need for continuous pursuit in hunting to perfect title against rivals.^[10] Typical exemplars of res nullius included wild animals (ferae naturae), fish in open waters, pearls or gems discovered in the sea, and abandoned chattels (res derelicta), where the prior owner intentionally relinquished title.^[13] However, limitations applied: acquisition demanded physical control (corpus), and certain items like enemy spoils (res hostilis) or sacred objects fell outside standard occupatio.^[10] Land was generally excluded, as territorial dominium vested in the state or emperor, though exceptional cases like islands emerging from the sea (per Institutes 2.1.22) permitted occupation.^[10] This framework prioritized empirical seizure over abstract claims, reflecting Roman pragmatism in property law while barring appropriation of inherently communal or divine resources.^[12]

Adoption in Medieval and Early Modern Thought

Medieval canonists, building on the 12th-century revival of Roman law through the glossators' commentaries on Gratian's Decretum Gratiani (c. 1140), incorporated res nullius to classify unowned movables such as wild animals and fish, which could be acquired by the first occupier through capture or seizure.^[10] This adaptation distinguished res nullius from res communes like air and sea, which were deemed incapable of private ownership due to their boundless nature, thereby preserving Roman categories within ecclesiastical jurisprudence while subordinating them to divine and natural law principles.^[14] Scholastic theologians further refined the concept amid debates on property's origins post-Fall. Thomas Aquinas, in Summa Theologica (c. 1265–1274), asserted that under natural law all things were originally common (res omnium communes), but human law permitted division and private possession to avoid discord; this framework implicitly endorsed appropriation of unclaimed goods akin to res nullius, as seen in his allowance for taking what necessity demands from another's holdings in extremis.^[15] William of Ockham, in his Breviloquium de Principatu Tyrannico (c. 1339–1340), explicitly drew on res nullius to argue that after Adam's sin, unowned resources reverted to a state where individuals could rightfully occupy them for subsistence, rejecting papal dominion over temporal goods and emphasizing self-preservation as a natural right.^[16] In early modern natural law theory, res nullius transitioned from domestic property rules to a cornerstone of ius gentium, facilitating European justifications for overseas expansion. Hugo Grotius, in De Jure Belli ac Pacis (1625), outlined occupation (occupatio) as a primary mode of acquiring sovereignty over unowned things, including uninhabited territories or uncultivated lands abandoned by prior holders, while distinguishing it from res communis inapplicable to seas due to their public utility.^[17] Samuel von Pufendorf, in De Jure Naturae et Gentium (1672), echoed this by positing that sovereigns could claim res nullius through effective control, provided no prior rights existed, influencing treaties like the Treaty of Utrecht (1713) where neutral territories were treated as occupiable commons.^[2] Emer de Vattel, in Le Droit des Gens (1758), systematized the doctrine for state practice, declaring that nations acquire title to terra nullius—lands without recognizable sovereign or productive inhabitants—via discovery and settlement, a principle applied to Pacific islands and North American frontiers despite debates over indigenous cultivation thresholds.^[18]

Key Applications

Wildlife and Natural Resources

In Roman law, wild animals (ferae naturae), such as birds, fish, and beasts roaming freely, were classified as res nullius, meaning they belonged to no one and could be acquired as property through occupatio—the act of taking physical possession or capture.^[19]^[20] This principle stemmed from the Institutes of Gaius and Justinian, which distinguished such unowned entities from domesticated animals (domitae naturae), owned by their keepers, and emphasized that ownership vested only upon effective control, preventing claims based merely on pursuit or wounding.^[13] For instance, a hunter who mortally wounded a deer but failed to retrieve it before another claimed the carcass lost any proprietary right, as the animal reverted to res nullius until possessed.^[21] The res nullius doctrine extended to certain natural resources analogous to wildlife, including unclaimed shellfish, pearls from the sea, or amber found adrift, which were similarly acquirable by the first appropriator without prior title. In maritime contexts, fish in open waters exemplified this, as they were not subject to ownership until netted or hooked, reflecting the causal reality that mobile, unconfined resources evade static property claims absent reduction to possession.^[22] This approach prioritized empirical appropriation over abstract assertions, aligning with the Roman emphasis on natural law where unowned things invited original acquisition to foster productive use. English common law inherited and adapted these Roman principles, embedding the "rule of capture" for wildlife and fugitive natural resources like groundwater or wild game, where title arose solely from extraction or reduction to dominion.^[23] By the 17th century, cases such as Piers v. Newbury (1626) affirmed that wild animals on private land remained res nullius unless pursued and taken, underscoring that landowners held no inherent ownership over transient fauna.^[24] While colonial American jurisdictions initially followed this, leading to open seasons on game until scarcity prompted regulation, the core res nullius logic persists in allocating rights to unowned resources, though tempered by statutory conservation laws asserting public trusteeship over wildlife populations since the late 19th century, as in the Lacey Act of 1900.^[25]^[22]

Territorial Acquisition (Terra Nullius)

The doctrine of terra nullius, meaning "land belonging to no one," enabled states to acquire sovereignty over territories lacking effective control by any recognized sovereign through the legal mode of occupation. In international law, occupation of terra nullius constituted an original title, requiring both the animus occupandi (intent to possess as sovereign) and corpus occupandi (material acts demonstrating effective control, such as settlement or administration).^[26] This principle, adapted from Roman law's res nullius to territorial contexts, presupposed the land's legal vacancy, irrespective of physical habitation, if no organized polity exercised paramount authority.^[27] European powers invoked terra nullius during the Age of Exploration to claim vast regions, often classifying indigenous-held lands as unoccupied due to the absence of European-style institutions like fixed borders or centralized governance. For example, on August 22, 1770, British explorer James Cook raised the Union Jack at Possession Island, Queensland, formally annexing the east coast of Australia southward from 38° south latitude, on grounds of terra nullius despite observable Aboriginal populations and land use.^[28] This claim underpinned the First Fleet's arrival on January 26, 1788, establishing New South Wales as a British colony without treaty, treating the continent as legally unclaimed.^[29] British legal authorities, including the 1835 proclamation by Governor Richard Bourke, reinforced this by invalidating private land deals with Aboriginal groups, asserting crown monopoly over alienation.^[30] The doctrine extended to other colonial acquisitions, such as French claims to Pacific islands like Clipperton Atoll in 1858, where sovereignty was upheld in a 1931 arbitration against Mexico on terra nullius occupation grounds due to uninhabited status and guano mining installations.^[26] In the Americas, while the Doctrine of Discovery predominated for inhabited non-Christian lands, terra nullius supplemented claims to sparsely controlled frontiers, as articulated by jurists like Emer de Vattel, who in 1758 argued that nations could seize uncultivated or inadequately used lands from "savage" nations to promote agriculture and population growth.^[31] By the 19th century, the principle formalized in state practice, with the 1885 Berlin Conference tacitly endorsing occupation for African "unoccupied" territories, though effective control became the evidentiary standard to prevent mere discovery claims.^[32] Post-World War I applications waned as terra nullius invocations faced scrutiny; the 1933 Permanent Court of International Justice ruling in the Eastern Greenland case rejected Denmark's exclusive claim, emphasizing continuous and peaceful display of sovereignty over Danish-Norwegian disputes, effectively narrowing occupation to truly sovereign-vacant lands.^[26] No major 20th-century acquisitions succeeded under pure terra nullius, with decolonization and UN Charter prohibitions on conquest rendering the doctrine obsolete for populated regions, though vestigial uses persist in disputes over unclaimed enclaves like Bir Tawil between Egypt and Sudan since 1902 boundary demarcations.^[31]

Philosophical and Theoretical Underpinnings

Influence on Natural Rights and Property Acquisition

The Roman legal principle of res nullius—denoting things unowned by any person, such as wild animals, fish in the sea, or abandoned property—permitted original acquisition through occupatio, a physical act of seizure that conferred dominion without violating prior rights.^[7] This mechanism presupposed a baseline of common access to nature's bounty absent ownership, establishing property not as inherent to objects but as arising from human intervention, a notion that resonated with later efforts to derive property entitlements from natural law rather than divine or communal allocation. Early modern natural law philosophers, drawing on Roman sources via medieval glossators, reframed res nullius as compatible with innate human rights to self-preservation and liberty. Hugo Grotius, in De Jure Belli ac Pacis (1625), posited that all things originated as res nullius, available for appropriation by the first occupant to meet basic needs, thereby grounding property in rational consent and utility over brute force.^[33] Samuel Pufendorf extended this in De Jure Naturae et Gentium (1672), viewing unowned resources as subject to individual seizure under natural liberty, provided it aligned with sociability and did not infringe others' equal claims, thus embedding res nullius acquisition within a rights-based ethics that prioritized empirical human necessities like sustenance.^[34] These adaptations elevated occupation from a procedural rule to a philosophical entitlement, influencing the view that property rights emerge prior to political authority. John Locke's Second Treatise of Government (1689) synthesized res nullius precedents into a labor theory, where the state of nature renders natural resources common yet appropriable as private property through productive effort—such as tilling soil or gathering acorns—without consent, as long as no waste occurs and sufficient shares remain for others (sections 27–37).^[35]^[36] Locke's proviso, rooted in self-ownership as the foundational natural right, transformed mere occupation into a causal justification: labor adds value, excluding others only insofar as it advances individual flourishing without depleting the commons.^[36] This integration positioned property acquisition as an extension of liberty and life rights, countering absolutist claims by asserting that governments exist to secure, not originate, such entitlements. By providing a verifiable mode of origination from unclaimed matter, res nullius thus informed natural rights doctrine's emphasis on individual agency in property formation, fostering theories where acquisition respects empirical limits like abundance and productivity, while critiquing enclosures that violate the proviso—evident in Locke's rejection of unlimited hoarding (section 31).^[35] This framework persisted in Enlightenment liberalism, distinguishing justifiable claims from conquest-based dominion and underscoring property's role in moral and economic order.^[2]

Lockean Labor Theory Integration

John Locke's labor theory of property, outlined in Chapter V of his Second Treatise of Government (1689), asserts that individuals originally hold the earth and its resources in common, but acquire exclusive rights by applying their labor to them, thereby removing portions from the common stock.^[37] Locke illustrates this with examples such as gathering acorns or enclosing and cultivating land, where labor adds value and establishes ownership, provided it adheres to provisos against waste and ensuring sufficient resources remain for others.^[37] This framework aligns with the Roman law notion of res nullius—unowned things susceptible to appropriation—by transforming mere occupancy into a justified claim grounded in productive effort rather than passive seizure. The integration elevates res nullius from a procedural rule of acquisition under ius gentium (the law of nations), which permitted the first occupant to claim unowned items like wild animals or abandoned lands, to a principle rooted in natural rights and human industry. Locke contends that without labor, resources remain in a state of commonality akin to res nullius, but the act of tilling soil or harvesting yields creates moral entitlement, as "labour... hath fixed my Property in them."^[37] This labor criterion distinguishes Lockean appropriation by emphasizing improvement and utility, contrasting with Roman occupatio's focus on bare possession, and provides a theoretical basis for claiming unoccupied territories without violating prior communal access. In practice, Locke's theory influenced justifications for territorial claims on terra nullius (land belonging to no one), particularly in colonial contexts where European settlers viewed indigenous-held but uncultivated expanses as effectively unowned due to limited agrarian development.^[38] He quantified this disparity, noting that cultivated European lands yielded ten times the produce of American counterparts per acre, implying that vast idle tracts left "enough and as good" for newcomers while condemning underutilization as a failure to fulfill natural obligations.^[39] However, this application hinges on Locke's empirical assessment of land productivity ratios, which prioritized sedentary agriculture over nomadic or subsistence uses, thereby extending res nullius logic through a lens of economic efficiency rather than strict vacancy.^[40]

Controversies and Critiques

Colonial Justifications and Empirical Realities

European colonial powers frequently invoked terra nullius, an application of the Roman res nullius principle to territory, to justify the acquisition of lands without negotiation or recognition of prior claims. Emer de Vattel, in his 1758 treatise The Law of Nations, argued that nations could occupy lands that were uncultivated or abandoned, even if sporadically inhabited by non-sovereign groups, extending res nullius to rationalize effective control through settlement and improvement.^[41] This framework underpinned claims in regions like Australia, where Captain James Cook raised the British flag in 1770 at Possession Island, asserting sovereignty over the east coast under terra nullius despite observable indigenous presence.^[30] Similarly, the Doctrine of Discovery, rooted in 15th-century papal bulls and secularized in European practice, permitted Christian monarchs to seize "pagan" territories deemed vacant or underutilized, facilitating expropriation across the Americas and Pacific from the 1490s onward.^[42] Empirically, however, these justifications clashed with on-the-ground realities of indigenous occupancy and resource stewardship. In Australia at British contact in 1788, indigenous populations numbered between 300,000 and 950,000, distributed across the continent with defined territories managed through kinship-based systems and practices like fire-stick farming, which shaped ecosystems for hunting and gathering.^[43]^[28] Archaeological and ethnographic evidence reveals constructed landscapes, including yam fields, fish traps, and aquaculture in regions like Brewarrina, contradicting claims of waste or nullity; these systems sustained populations without European-style fences or plows but evidenced purposeful land alteration over millennia.^[44] In the Americas, pre-Columbian societies cultivated vast areas—such as the Inca terraces or Mesoamerican chinampas—supporting tens of millions, yet res nullius-inspired doctrines post-1492 ignored such tenure, attributing depopulation (over 90% by 1600, primarily from introduced diseases) retroactively to validate seizures.^[42] Critiques of terra nullius emphasize its role as a selective legal construct that privileged European notions of productivity over indigenous customary rights, often disregarding treaties where inconvenient, as in early North American purchases later nullified.^[45] The doctrine's empirical fragility was exposed in legal reversals, such as Australia's 1992 Mabo v Queensland (No 2 High Court ruling, which rejected terra nullius as incompatible with historical evidence of native title and mandated recognition of pre-existing interests where continuous connection persisted.^[29] While some applications aligned with sparse settlement in arid interiors, the principle systematically facilitated dispossession, yielding long-term conflicts and demographic collapses, though causal analysis attributes much violence to resource competition rather than inherent nullity.^[46]

Indigenous Land Rights and Legal Challenges

The doctrine of terra nullius, when extended to territories inhabited by indigenous peoples, has faced significant legal scrutiny for disregarding evidence of pre-colonial land tenure systems, including communal governance, territorial boundaries, and resource management practices that demonstrated effective control and use. Courts in settler states have increasingly recognized that such occupation precluded classification as unowned land, though native rights were often deemed subject to extinguishment by subsequent sovereign acts like settlement or valid treaties. This shift reflects empirical assessments of indigenous societies' historical dominion, countering colonial-era assumptions of nomadism or underutilization as equivalents to vacancy. In Australia, British annexation in 1788 invoked terra nullius to assert sovereignty over the continent, ignoring Aboriginal laws of property and inheritance evidenced through oral traditions and archaeological records. The High Court overturned this in Mabo v Queensland (No 2) on 3 June 1992, ruling that native title persists where indigenous groups maintain continuous connection to land under traditional laws, thereby rejecting terra nullius as inapplicable to inhabited domains and establishing criteria for title recognition based on pre-sovereignty occupation. Subsequent legislation, the Native Title Act 1993, operationalized these principles, enabling claims but limiting them to unalienated Crown land, with over 500 determinations registered by 2023 affirming titles covering millions of hectares. Critics from legal scholars note that while Mabo corrected a doctrinal error, it preserved colonial acquisitions where "radical title" had been asserted through pastoral leases or grants, aligning with causal realities of effective European settlement displacing prior uses. Canada's legal challenges similarly dismantled terra nullius-like fictions. The Supreme Court in Calder v Attorney-General of British Columbia (1973) affirmed Aboriginal title as a sui generis right rooted in pre-contact occupation, with Justice Judson dissenting on extinguishment but acknowledging the Nishgaa's historical sovereignty over Nass Valley lands unoccupied by settlers at assertion of Crown sovereignty. Building on this, Delgamuukw v British Columbia (1997) defined title as encompassing exclusive use of 58,000 square kilometers claimed by Gitxsan and Wet'suwet'en nations, provable via oral histories and establishing that title burdens the Crown with a duty to consult on developments, though not veto power. These rulings entrenched section 35 rights in the 1982 Constitution, leading to modern treaties like the Nisga'a Final Agreement (2000) transferring governance over 2,000 square kilometers, though empirical data shows ongoing disputes over infringement via resource extraction. In the United States, the related doctrine of discovery—invoking elements of terra nullius—was enshrined in Johnson v. M'Intosh (1823), where the Supreme Court held that European discovery conferred ultimate title to the federal government, relegating tribes to occupancy rights extinguishable by purchase or conquest, as applied to Illinois lands sold by Piankeshaw chiefs. Indigenous challenges, such as those under the Indian Claims Commission (1946–1978), recovered compensations for over 100 million acres but rarely land restitution, with the doctrine critiqued for subordinating tribal sovereignty despite evidence of structured polities like the Iroquois Confederacy. Recent cases, including McGirt v. Oklahoma (2020), have reaffirmed reservation boundaries based on treaty language, indirectly limiting discovery's scope, yet federal plenary power persists, reflecting historical conquests where military superiority, not legal title alone, secured control. Internationally, the ICJ's Advisory Opinion on Western Sahara (1975) repudiated terra nullius for "backward" peoples, influencing UNDRIP (2007) affirmations of indigenous land rights, though without nullifying established states.

Modern Interpretations and Developments

Status in Public International Law

In public international law, res nullius denotes property or territory belonging to no one, which may be acquired through the mode of occupation, requiring both effective control (corpus possessionis) and intent to possess as sovereign (animus possidendi).^[26] This principle, derived from Roman law's occupatio, applies to terra nullius—land devoid of any prior sovereign authority—and remains a theoretically recognized means of territorial acquisition alongside cession, accretion, and prescription.^[47] However, effective occupation demands continuous and peaceful display of state authority, as affirmed in arbitral decisions like the *Island of Palmas* case (1928), where mere discovery without subsequent control was insufficient. The doctrine's application is severely constrained in contemporary practice, as terra nullius is interpreted narrowly to exclude territories inhabited by peoples with social or political organization, even if not fully sovereign states. The International Court of Justice (ICJ) in its Western Sahara Advisory Opinion (1975) explicitly rejected terra nullius for regions with nomadic or tribal structures, emphasizing that such lands were not ownerless but subject to pre-existing ties requiring negotiation or recognition. Similarly, the ICJ's East Timor case (1995) underscored the priority of self-determination under UN General Assembly Resolution 1514 (XV) (1960), rendering occupation claims invalid against indigenous rights or effective local governance. No significant territorial acquisitions via res nullius have occurred since the early 20th century, owing to the exhaustion of unclaimed lands and Article 2(4) of the UN Charter (1945), which prohibits the threat or use of force to alter boundaries. Abandonment (derelictio) of sovereignty can theoretically revert territory to res nullius, enabling re-occupation, but requires unequivocal intent alongside cessation of authority, a high threshold rarely met.^[48] Examples include the United Kingdom's relinquishment of claims to Bouvet Island in 1928, followed by Norway's assertion in 1930. In domains beyond land, such as wildlife or derelict vessels, res nullius permits individual or state appropriation under customary rules, but global commons like the high seas and outer space are classified as res communis omnium, non-appropriable per the UN Convention on the Law of the Sea (1982) and Outer Space Treaty (1967). Thus, while not formally abolished, the principle's role is marginal, supplanted by consent-based mechanisms and prohibitions on coercive expansion.

Applications in Space and Maritime Domains

In maritime law, the principle of res nullius has historically applied to unowned movable property on the high seas, such as abandoned vessels, cargo, or marine life, which can be appropriated by the first effective occupier through capture or salvage.^[49] For instance, fish stocks in international waters are treated as res nullius prior to capture, allowing states or vessels to claim ownership upon reduction to possession, subject to conservation obligations under the United Nations Convention on the Law of the Sea (UNCLOS, 1982).^[50] This contrasts with the high seas themselves, which are designated res communis—open to all nations for navigation, fishing, and overflight but not subject to sovereignty claims—evolving from earlier debates where some viewed seas as res nullius capable of occupation, as critiqued by Hugo Grotius in Mare Liberum (1609).^[51] Salvage operations exemplify practical application: under customary international law and UNCLOS Article 98, salvors may claim rewards for rescuing imperiled property, effectively appropriating res nullius items like wrecks if unclaimed by original owners.^[52] Debates persist over deep seabed minerals beyond national jurisdiction, where some interpretations invoke res nullius to justify unilateral extraction, though UNCLOS Part XI establishes the "Area" as the common heritage of mankind, prohibiting appropriation and mandating benefit-sharing via the International Seabed Authority (established 1994).^[53] This regime, ratified by 169 parties as of 2023, overrides res nullius claims to prevent a "first-come, first-served" scramble, reflecting empirical concerns over resource depletion observed in unregulated high seas fisheries.^[54] In space law, res nullius informs interpretations of resource extraction from celestial bodies, despite the Outer Space Treaty (1967) classifying outer space, including the Moon and other bodies, as res communis—the "province of all mankind"—prohibiting national appropriation by claim of sovereignty, use, or occupation (Article II).^[55] Prior to the treaty, some legal scholars viewed unclaimed celestial objects as res nullius, analogous to terra nullius on Earth, but the treaty shifted toward non-appropriation to avert Cold War-era territorial grabs.^[56] Applications arise in commercial mining: the U.S. Commercial Space Launch Competitiveness Act (2015) authorizes citizens to possess, transport, and sell extracted asteroid or lunar resources, treating them as res nullius once severed from their natural state, without violating the treaty's ban on body appropriation—mirroring high seas fish capture.^[57] Luxembourg's 2017 space resources law similarly enables ownership of mined materials, fostering a private sector estimated at $1.1 billion in launch investments by 2023, though critics argue it risks transforming res communis into de facto res nullius exploitation.^[3] The unratified Moon Agreement (1979), endorsed by only 18 states, designates lunar resources as common heritage, requiring international regulation, but major spacefaring nations like the U.S., Russia, and China reject it, preferring treaty-compliant national laws that leverage res nullius for severed resources.^[58] Empirical data from NASA's OSIRIS-REx mission (sample return 2023) underscores feasibility, returning 121.6 grams of asteroid material claimed as U.S. property, highlighting tensions between res communis ideals and practical appropriation incentives.^[59] Ongoing Artemis Accords (2020, 45 signatories by 2025) promote safety zones around extraction sites without sovereignty claims, indirectly accommodating res nullius-like resource rights to encourage investment projected at $100 billion annually by 2040.^[60]

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[PDF] Medieval Origins of the Western Natural Rights Tradition
10' Ock- ham looked to the Roman-law doctrine of res nullius-the rule that anyone may take a good belonging to no one-and concluded that, after the Fall of ...
[17]
[PDF] grotius and the law of the sea - imageREAL Capture
He asserts that Grotius's concept of the sea as res communis is contrary to the Scriptures, because God's injunction to man to "subdue the earth and rule ...
[18]
[PDF] Acquiring Empire by Law: From Roman Doctrine to Early Modern ...
The writings of Francisco de Vitoria, Domingo de Soto, Alberico Gentili, and Hugo Grotius provide good illustrations of the ways res nullius was used in intra- ...Missing: primary | Show results with:primary
[19]
Gaius, Hadzic and occupatio of wild animals - classical Roman law ...
Things not belonging to anyone - res nullius - may be the subject of occupatio and may become the property of the person who first acquires possession of them.
[20]
Property Rights: Roman Concepts - ferae naturae wild animals
It may be recalled that "Res Nullius" are physical things which "have not or have never had" an owner. This includes wild animals, fishes and wild fowl in ...
[21]
Roman Law - The Federalist Society
And then if you go a little bit further in Justinian and in Gaius, what they do is they announce that res nullius includes land, it includes wild animals, fish, ...<|separator|>
[22]
The American Rule of Capture and State Ownership of Wildlife
... res nullius resources like wildlife (ferae naturae) if they did so consistent with Roman law (imperium). When transferred to English common law, capture ...
[23]
The Limits of the Public Trust Doctrine - PERC
Jun 19, 2019 · The Myth of State Ownership Under the common law, wildlife is considered res nullius—meaning it is unowned until it is captured and reduced to ...
[24]
[PDF] The American Rule of Capture and State Ownership of Wildlife
Capture principles subsequently became a central feature of American natural resources law, especially in allocating private rights to public resources like ...
[25]
The American Rule of Capture and State Ownership of Wildlife
Nov 14, 2005 · The Pioneer Spirit and the Public Trust: The American Rule of Capture and State Ownership of Wildlife. Environmental Law, Vol. 35, No. 4, 2005.
[26]
Territory, Acquisition - Oxford Public International Law
In territories characterized legally as terrae nullius, the acquisition of sovereignty is termed 'original', whereas for territories already under the ...
[27]
terra nullius | Wex | US Law | LII / Legal Information Institute
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 ...
[28]
Challenging terra nullius | National Library of Australia (NLA)
Oct 17, 2024 · In 1835, for example, John Batman negotiated an agreement with the Wurundjeri elders in Victoria to take ownership of their land in exchange for ...
[29]
Terra Nullius | Rule of Law Education Centre
' In legal jargon, terra nullius means 'land over which no previous sovereignty has been exercised.' It wasn't until the late 20th century that the term terra ...
[30]
Terra nullius - The Australian Museum
Terra nullius is today used as a catch-all phrase to explain how Australia was founded; to justify and legitimise the dispossession, dispersal, and inhumane ...<|separator|>
[31]
The Doctrine of Occupation through “Terra Nullius” as a Right of Self ...
In modern international law, terra nullius refers to land that lacks sovereignty rather than ownership or res nullius. Hu claims that terra nullius was a Roman ...
[32]
[PDF] A Reexamination of the Acquisition of Australia
The Committee held that New South Wales was a terra nullius because it was "a colony which consisted of a tract of territory practically unoccupied, without ...
[33]
Pound on the Philosophy of Law (Property) | Online Library of Liberty
A theory of acquisition by discovery and appropriation of res nullius, reserving a few things as res extra commercium, did not involve serious difficulty.
[34]
Pufendorf's Moral and Political Philosophy
Sep 3, 2010 · Pufendorf is known as a voluntarist in ethics, a sovereignty theorist in politics, and a realist in international relations theory.
[35]
Second Treatise of Government - Project Gutenberg
Dec 25, 2021 · John Locke's “Second Treatise of Government” was published in 1690. The complete unabridged text has been republished several times in edited commentaries.Missing: res nullius
[36]
Locke's Political Philosophy
Nov 9, 2005 · He argued that people have rights, such as the right to life, liberty, and property, that have a foundation independent of the laws of any particular society.<|separator|>
[37]
Property: John Locke, Second Treatise, §§ 25--51, 123--26
Though the Earth, and all inferior Creatures be common to all Men, yet every Man has a Property in his own Person. This no Body has any Right to but himself.Missing: res nullius
[38]
[PDF] John Locke's Theory of Property, and the Dispossession of ...
Jan 25, 2022 · While the influence of Locke's thought in cultivating liberal political theory and informing contemporary understandings of private property is ...
[39]
[PDF] LOCKE'S THEORY OF PROPERTY AND THE LIMITS OF THE ...
Locke traces a comparison between cultivated and uncultivated lands by referring to a ratio of profit of “hundred to one”,64 respectively, as in the case of ...
[40]
Locke's Theory of Property and English Colonialism in America
Locke's theory of property in the Two Treatises of Government is shaped by his deep involvement in the development of colonial policy.
[41]
the high court and recognition of native title: distinguishing between ...
Initially, the doctrine of terra nullius was applied to the acquisition of new territory which was uninhabited. Emmerich de Vattel, one of the most ...
[42]
'Doctrine of Discovery', Used for Centuries to Justify Seizure of ...
May 8, 2012 · The Doctrine of Discovery had been used for centuries to expropriate indigenous lands and facilitate their transfer to colonizing or ...
[43]
https://www.workingwithindigenousaustralians.info/content/History_2_60%2C000_years.html
[44]
The loss of an indigenous constructed landscape following British ...
May 6, 2020 · This research provides empirical evidence to challenge the long-standing portrayal of Indigenous Australians as low-impact 'hunter-gatherers' ...
[45]
The Doctrine of Discovery and Terra Nullius
Oct 25, 2021 · Land was considered terra nullius (vacant land) if it had not yet been occupied by Christians. Such vacant lands could be defined as “ ...
[46]
[PDF] BOOK NOTE - Harvard Law School Journals
legal regime of terra nullius, later colonial governments both refused to purchase lands from Australian Aborigines themselves and invalidated purchases of ...<|separator|>
[47]
[PDF] Occupation and Acquisitive Prescription
The concept of occupatio was taken from classi- cal Roman law and the notion of terra nullius was closely related to another Roman law concept, res nullius.
[48]
Territory, Abandonment - Oxford Public International Law
The consequence of abandonment is either that the territory becomes res nullius once again, or that it falls under another State's sovereignty. However, the ...Missing: modern | Show results with:modern
[49]
Freedom of the Seas | The International Law of the Sea
This chapter describes the concept of the freedom of the seas, first articulated by the Dutch jurist Hugo Grotius who published Mare Liberum or The Free Sea in ...
[50]
[PDF] Fisheries and the Law of the Sea: A Gommon Heritage Approach
Res nullius resources are understood to be no one's, and subject to appropriation. Res communis resources are understood as being anyone's, and not subject ...
[51]
21 Jurisdiction on the High Seas - Oxford Academic
Grotius wrote that in the legal phraseology of the law of nations the sea is called indifferently res nullius, res communis, or res publica.
[52]
Biodiversity in High Seas Areas: An Integrated Legal Approach | ASIL
Sep 1, 2017 · The Romans considered the high seas to be a public space,[17] and later doctrine viewed the oceans as res nullius (belonging to none). As ...
[53]
The Latest Trump Threat to International Law: Unilaterally Mining the ...
May 6, 2025 · ... Area are res nullius subject to the freedom of the high seas regime. That answer would receive a failing grade in my Law of the Sea class.
[54]
[PDF] Articles concerning the Law of the Sea with commentaries, 1956
HIGH SEAS. SECTION I. GENERAL REGIME. Definition of the high seas. ARTICLE 26. 1 ... as res nullius, i.e., capable of being appropriated by the first occupier.
[55]
Outer Space, an Area Recognised as Res Communis Omnium
... international law distinguishes two additional categories, namely, terra nullius and res communis omnium. Areas recognised as terra nullius may be ...Missing: distinction | Show results with:distinction
[56]
The Law of Outer Space and Natural Resources - jstor
Or, put another way, whereas prior to the 1967 Space Treaty the moon and celestial bodies were res nullius and, consequently, subject to appropriation under ...
[57]
"Res Communis Omnium v. Res Nullius in U.S. Space Mining Law ...
Oct 13, 2023 · This study analyzes U.S. space mining law, finding no inherent incompatibility between "res communis omnium" and "res nullius" under the "Non- ...
[58]
[PDF] Re-exploring Terra Nullius and Property Rights in Space
Dec 17, 2020 · The paper analyzes if claims on lunar real estate are valid, examining the Outer Space Treaty and the concept of "terra nullius" (no man's land ...
[59]
Lost in Space: From Res Communis to Terra Nullius - Sage Journals
Mar 31, 2025 · The idea of res nullius, on the other hand, enables possession: “The Americas were considered res nullius, and hence belonged to no one until a ...
[60]
Sovereignty in Space: Changing Dimensions
Aug 6, 2023 · ... res nullius, that is, belonging to no one. This doctrinal distinction has major ramifications for the trajectory of international space law ...