Res communis and res nullius

Sai Manoj Reddy

Res communis and res nullius are the two legal maxims which have a great significance in the legal world and mainly in the laws related to seas, space and many natural resources. These two legal maxims take us back to the roman philosophy from which these maxims are born. In Roman law these maxims usually determine about the public property and its ownership.

Now coming to what is res communis and res nullius actually mean; res communis is something which is owned or being used commonly by all, like seas, underground water, and many other natural resources. In sixth century C.E the institutes of Justinian codified the relevant Roman law as, “By the law of nature these things are common to mankind- air, running water, the sea and the shores of the sea. The concept of res communis also includes biological elements like fish and aquatic animals in the seas, plants in seas and rivers and many others. In the present concepts of law the res communis preceded into the concepts of public domain and common heritage of mankind. In the present generation of law the concept of res communis played a major role in the world by development of maritime law, space law, rules of usage of the continent Antarctica.

Res nullius is also Latin term derived from Roman law which means any object which is an ownerless property and is usually free to be owned. Some examples of res nullius are wild animals or abandoned property, a thing which is completely lost or abandoned is also res nullius and belonged to the first taker.

In the development of the space law there are many complications initially and the major jurists debated on the matter whether the space can be taken as res communis or res nullius and how can one restrict or apply laws as the space is limitless and as the Earth is rotating how can one divide boundaries. And even in the maritime law the concept of res communis is applied to gain free access to the high seas considering it as property of all or none. Best example in the space law where the concept of res communis and res nullius came to play in the development of space law is after the launch of sputnik by Russia the first colloquium on the law of outer space took place in Hague. Initially the jurists debated whether to consider the outer space as res communis or res nullius and how can it be governed and later after the second colloquium it is clear that the jurists are not only debating on how outer space is to be governed but they are also trying to figure out how outer space is to be imagined. Now in the case of US v. causby where the respondent made a petition to the court saying that the owner of land owns it from depths to the heavens according to the maxim “Cujus est solum, ejus est wsque ad coelum”, and the court held that this maxim is of no use in the present generation of highly developed technology of airways and communication and held that there is a minimum safe altitude to which the owner of property can own up to.

Now coming to the maritime law where the laws are made over the usage of seas and oceans using the concepts of res communis and res nullius. There is a certain distance up to which the waters belong to the particular country and the jurisdiction lies only up to that distance. The high seas there are no one who can have jurisdiction and anyone can move freely in high seas.

Next comes the laws relating to the usage of underground water and flowing water like rivers and streams. There is an interesting case in India Perumatty Gram Panchayat v.State of Kerala, where a soft drink company has been sued by the Perumatty Gram Panchayat for the excess usage of ground water leading to the depletion of the underground water level in the nearby villages. Here the company tried a lot to justify their usage of water and also relied on the concept that a person who owns the land owns till the depths of it and can do anything with it. They also relied on the famous case of Bradford v. pickles, where the court held that the owner can do anything in his own land whether it is on the surface or under the surface. But the court very interestingly held that the underground water is everyone’s property and usage of more underground water by only one person is a big issue and if the court allows the company to continue its usage of water then many others will do the same and it will become an big issue and the court also involved article 21 of the Indian constitution which says right to life also includes the clean drinking water which is violated by the company by the over usage of underground water.

Finally the concept of res communis and res nullius is very useful in the interpretation by the court on the issues related to the natural resources and the exploitation of natural resources by the corporates.

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