Global Encyclopedia of Territorial Rights

Living Edition
| Editors: Michael Kocsis

Terra Nullius and the Doctrine of Discovery

Living reference work entry


The doctrine of discovery is the idea that merely by virtue of being the first Europeans to “discover” a territory, the sovereign represented by those Europeans gains rights of sovereignty and title over that territory. The doctrine holds that these rights apply as against both Indigenous peoples and other European sovereigns.

While the doctrine of discovery is closely related to the concept of terra nullius (land belonging to no one), it is a conceptual tool that has been used even for lands that clearly did belong to others, as discussed below.


The Discovery Doctrine was a recognized principle of international law, arising in large part out of the relationships between European countries (Akehurst at 7.4.1). It was accepted law in the fifteenth and sixteenth centuries (Crawford, 211). Two of the most important sources of this principle of international law were the Papal Bulls of Romanus Pontifex (1455) and Inter Caetera (1493).

These Bulls purported to give...

This is a preview of subscription content, log in to check access.


  1. Borrows J (2015) Aboriginal title and private property. The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference. Sup Ct L Rev 71:91–134Google Scholar
  2. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831)Google Scholar
  3. Crawford J (2019) Brownlie’s public international law, 9th edn. Oxford University Press, OxfordGoogle Scholar
  4. Delgamuukw v British Columbia, [1997] 3 SCR 1010Google Scholar
  5. Dufraimont L (2000) From regulation to recolonization: justifiable infringement of aboriginal rights at the Supreme Court of Canada. UT Faculty Law Rev 58(1):1–31Google Scholar
  6. International Court of Justice (1975) Advisory opinion on Western Sahara.
  7. Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543 (1823)Google Scholar
  8. Miller RJ, Ruru J, Behrendt L, Lindberg T (2010) Discovering indigenous lands: the doctrine of discovery in the English colonies. Oxford University Press, OxfordCrossRefGoogle Scholar
  9. Orakhelashvili A (2018) Akehurst’s modern introduction to international law, 8th edn. Routledge, LondonCrossRefGoogle Scholar
  10. R v Sparrow, [1990] 1 SCR 1075Google Scholar
  11. R v Van der Peet, [1996] 2 SCR 507Google Scholar
  12. Truth and Reconciliation Commission of Canada, Calls to Action (2015)
  13. Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832)Google Scholar

Authors and Affiliations

  1. 1.Olthuis Kleer Townshend LLPTorontoCanada

Section editors and affiliations

  • Kevin W. Gray
    • 1
  1. 1.University of TorontoTorontoCanada