ABSTRACT
Despite the distinction contemporary texts of international relations make between the legal doctrines of terra nullius and res nullius, there is a persistent confusion of these terms at nearly every level of their usage. To add to this confusion, international law often collapses the doctrine of res nullius, things that belong to no-one into res communis, things that belong to everyone, things that have the legal status of “commons.” The result is that the current legal conceptualization of commons is compromised by an imperialist spatial imaginary that persists in the doctrines of terra and res nullius. Since the post-World War II era of decolonization and the various revocations of terra nullius, it seems clear to legal scholars and lay people alike that terra nullius represents a now officially outdated colonial doctrine of sovereignty. With the revocation of terra nullius international law recognizes that Indigenous lands never did belong to nobody. What is not yet clear, however, is that res nullius carries on the spatial arguments of terra nullius into our attempts to legally define and care for the environments that we hold in common. At the bottom of this confusion lies the cultural logic of empty space. This chapter scrutinizes the confusion between terra nullius and res nullius in contemporary international relations, in the semantic features of the legal terms, and in the historical texts that legitimate colonial sovereignty.
