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Published online by Cambridge University Press: 28 October 2019
This article examines whether discovery could, contrary to common philosophical opinion, be taken seriously as a ground of territorial rights. I focus on the discovery of uninhabitable lands such as found in the Arctic. After surveying the role of discovery in Roman private law and modern international law, I turn to Locke's well-known theory or original acquisition. I argue that many of the justifications that do the work in Locke's theory also apply to discovery. I then discuss some of the many reasons why discovery may seem unpromising as a ground of original acquisition. I close by arguing that if there is a bridge mechanism by which property can legitimately transform into territory and if, at least in some circumstances, discovery can produce property rights, then it would follow that in some circumstances discovery could also produce territorial rights.
1 For instance, the Russian claim for Wrangel Island in the Arctic is based on the ground of discovery, as reported in ‘Laurence Collier, Memorandum Respecting Territorial Claims in the Arctic to 1930, 10 February 1930’, in Kikkert, Peter and Lackenbauer, P. Whitney, Legal Appraisals of Canada's Arctic Sovereignty: Key Documents, 1905–56 (Calgary: Centre for Military and Strategic Studies, University of Calgary, 2014), 121–2Google Scholar. Norway based its claims for the Sverdrup Islands on this ground as mentioned in the same memorandum, at 132, 134–135. Canada's appeal to discovery rights can be found, for example, in ‘Memorandum, W. F. King, Chief Astronomer, to Hon. Clifford Sifton, Minister of the Interior, Report upon the Title of Canada to the Islands North of the Mainland of Canada, 23 January 1904’ and various other internal memoranda, such as those by L. C. Christie, J. B. Harkin, and E. R. Hopkins, in Kikkert and Lackenbauer, Legal Appraisals of Canada's Arctic Sovereignty: Key Documents, 1905–56, 4, 7, 8, 12, 260. This research has been possible thanks to a generous grant by the Halbert Centre for Canadian Studies at the Hebrew University of Jerusalem. I would like to thank the editors of this journal and two reviewers who remain anonymous, as well as Dr Cara Nine who disclosed her identity at the final review stage, for their excellent comments and corrections. Thanks are due also to Professor Chris Armstrong and Professor Anna Stilz for their generous and useful advice. I am grateful to Yulia Erfurt, who provided excellent research assistance and Dr Elizabeth Miles who carefully edited the final version.
2 See Bennett, Michael, ‘The People's Republic of China and the Use of International Law in the Spratly Islands Dispute’, 28 Stanford Journal of International Law (1992) 425–50Google Scholar; Shen, Jianming, ‘International Law Rules and Historical Evidence Supporting China's Title to the South China Sea Islands’, 21 Hastings International and Comparative Law Review (1997) 1–76Google Scholar.
3 Reports of International Arbitral Awards, Island of Palmas Case (Netherlands/U.S.A.), II Vols (1928), 839.
4 Bernárdez, Santiago Torres, ‘Territory, Acquisition’, in Bernhardt, Rudolf (ed.), Encyclopedia of Public International Law, 4 Vols (New York: North-Holland, 2000), 834Google Scholar.
5 Shen, ‘International Law Rules’, 14–15.
6 This is clear from a survey of some of the important contributions to this literature. For example: Kolers, Avery, Land, Conflict and Justice: A Political Theory of Territory (Cambridge: Cambridge University Press, 2009)CrossRefGoogle Scholar; Meisels, Tamar, Territorial Rights (Dordrecht: Springer, 2009)CrossRefGoogle Scholar; Miller, David, ‘Territorial Rights: Concept and Justification’, 60 Political Studies (2012) 252–68CrossRefGoogle Scholar; Mancilla, Alejandra, ‘Rethinking Land and Natural Resources, and Rights over Them’, 6 Philosophy and Public Issues (2016) 125–41Google Scholar and her ‘The Volcanic Asymmetry or the Question of Permanent Sovereignty over Natural Disasters’, 23 Journal of Political Philosophy (2015) 192–212CrossRefGoogle Scholar; Moore, Margaret, A Political Theory of Territory (Oxford: Oxford University Press, 2015)CrossRefGoogle Scholar; Nine, Cara, Global Justice and Territory (Oxford: Oxford University Press, 2012)CrossRefGoogle Scholar.
7 Tamar Meisels, Territorial Rights, 9.
8 Simmons, A. John, Boundaries of Authority (Oxford: Oxford University Press, 2016), 200CrossRefGoogle Scholar.
9 Simmons, A. John, ‘Original-Acquisition Justifications of Private Property’, 11 Social Philosophy and Policy (1994) 63–84CrossRefGoogle Scholar.
10 Letter by the Canadian Permanent Undersecretary of State Oscar D. Skelton, 7 January 1930 in Thobias Thorleifsson, ‘Norway “Must Really Drop Their Absurd Claims Such as That to the Otto Sverdrup Islands”’ (2006) (Bi-polar International Diplomacy: The Sverdrup Islands Question, 1902–1930, Thesis, Simon Fraser University) 79.
11 Kantorovich, Aharon, Scientific Discovery: Logic and Tinkering (New York: State University of New York Press, 1993), 13Google Scholar. Kantorovich adds that not every increment of knowledge counts as discovery but only an increment that is unexpected, has a special interest or constitutes an increment of general knowledge or a change in our general beliefs.
12 Drahos, Peter, A Philosophy of Intellectual Property (Acton: ANU eText, 2016), 80–81Google Scholar.
13 Grotius, Hugo, The Free Sea, David Armitage, ed. (Indianapolis: Liberty Fund, 2004) ch. 2 at 13–14Google Scholar.
14 de Freitas, Serafim, De iusto imperio lusitanorum asiatico (Valladolid: Jerónimo Morillo, 1625) c. 3 n. 14 at 17BGoogle Scholar. There is another possible meaning to invenire favored by the Portuguese: to ‘open up’ as in opening up a route. See Pagden, Anthony, Burdens of Empire: 1539 to the Present (Cambridge: Cambridge University Press, 2015), 168CrossRefGoogle Scholar.
15 The distinction between the justification for an institution and the justification for particular moves allowed by the institution is taken from David Schmidtz, ‘The Institution of Property’, at 8. https://davidschmidtz.com/sites/default/files/research…/InstitutionProperty2012.pdf
16 On permissive natural law see Tierney, Brian, Liberty & Law: The Idea of Permissive Natural Law 1100–1800 (Washington, DC: CUA Press, 2014)CrossRefGoogle Scholar.
17 See Silva, Paula Oliveira, ‘Facing the Ambiguities of Aquinas: The Sixteenth-Century Debate on the Origins of the ius gentium’, in Guldentops, Guy and Speer, Andreas (eds), Das Gesetz – The Law – La Loi (Berlin and Boston: De Gruyter, 2014), 489–508Google Scholar.
18 On the ius gentium as exhibiting fittingness to natural law see Suárez, Francisco, On Laws and God the Lawgiver [De legibus ac Deo legislatore], book 2 ch. 19 nn. 8–9 in Selections from Three Works of Francisco Suárez, S. J., Scott, James Brown (ed.), Williams, Gwladys L. et al. trans. 2 vols (Oxford: Clarendon Press and London: Humphrey Milford, 1944), 348Google Scholar.
19 See Daniel Schwartz, ‘Caramuel on the Right of Discovery’, in Jorg Tellkamp (ed.), A Companion to Iberian Imperial, Political, and Social Thought (Brill, forthcoming).
20 Lobkowitz, Juan Caramuel y, Theologia Moralis (Leuven: Petrus Zangrius, 1645), 27, n. 122Google Scholar. All translations from this work are mine.
21 Caramuel, Theologia Moralis, 70, n. 264.
22 Caramuel, Theologia Moralis, 70, n. 264.
23 Caramuel, Theologia Moralis, 70, n. 264.
24 Kirzner, Israel M., Discovery, Capitalism and Distributive Justice (Oxford: Blackwell, 1989), 42Google Scholar.
25 These are usefully summarized in Widerquist, Karl, ‘Lockean Theories of Property: Justifications for Unilateral Appropriation’, 2(1) Public Reason (2010) at 6Google Scholar. He refers among others to the work of Arneil, Barbara, John Locke and America: In Defence of English Colonialism (New York: Oxford University Press, 1996)CrossRefGoogle Scholar; Olivecrona, Karl, ‘Appropriation in the State of Nature’, 35 Journal of the History of Ideas (1974) 211–30CrossRefGoogle Scholar; Cohen, G. A., Self-Ownership, Freedom, and Equality (Cambridge: Cambridge University Press, 1995)CrossRefGoogle Scholar; Schmidtz, David, ‘When is Original Appropriation Required?’, 73 Monist (1990) 504–18CrossRefGoogle Scholar; Waldron, Jeremy, The Right to Private Ownership (Oxford: Clarendon, 1988)Google Scholar; and Sreenivasan, Gopal, The Limits of Lockean Rights in Property (New York: Oxford University Press, 1995)Google Scholar.
26 Cara Nine, ‘Claiming the Arctic: Principles for Acquiring Territory from the Commons’ (2012), SSRN. available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2065734, 23. David Miller follows Locke in providing an argument for territorial rights based on added value. Miller, David, National Responsibility and Global Justice (Oxford: Oxford University Press, 2007), 217–8CrossRefGoogle Scholar. Meisels distinguishes between adding value as a ground for rights and ‘creator's right’ more in the direction of Caramuel, Territorial Rights (Dordrecht: Springer, 2009), 124Google Scholar.
27 See Marx, Karl, A Contribution to the Critique of Political Economy, trans. Stone, N. I. (New York: International Library Publishing, 1904), 50Google Scholar.
28 See Kirzner, Discovery, Capitalism and Distributive Justice, 45.
29 See Feinberg, Joel, Doing and Deserving (Princeton, NJ: Princeton, 1970)Google Scholar and Sher, George, Desert (Princeton, NJ: Princeton, 1987), ch. 4Google Scholar.
30 Sher, Desert, ch. 4; Sadurski, Wojciech, Giving Desert its Due: Social Justice and Legal Theory (Dordrecht: D. Riedel, 1985), ch. 5CrossRefGoogle Scholar. For a review and analysis of the literature, see Lamont, Julian, ‘The Concept of Desert in Distributive Justice’, 44 Philosophical Quarterly (1994) 45–54CrossRefGoogle Scholar.
31 Chris Armstrong has made a similar point in discussing Locke's reliance on desert: why should the Lockean farmer get all of the land and not what is proportionate to the intensity of her labor? Armstrong, Chris, Justice and Natural Resources: An Egalitarian Theory (Oxford: Oxford University Press, 2017), 97CrossRefGoogle Scholar.
32 As noted by Armstrong. See Honoré, Tony, ‘Ownership’ in his Making Laws Bind (Oxford: Clarendon, 1987), 165–79Google Scholar.
33 See Tully, James, A Discourse on Property: John Locke and His Adversaries (Cambridge: Cambridge University Press, 1980)CrossRefGoogle Scholar, ‘workmanship model’ (4–9 and chapter 2).
34 Caramuel, Theologia Moralis, 66, n. 241.
35 This sentence is not meant to recognize neither Columbus nor Vespucci as discoverers of America: America was already settled, Norse expeditions to America predated Columbus' voyages and (as if this was not enough) a rumor circulated shortly after 1492 that Columbus learned about the route to America from a ‘mysterious pilot’ who landed in America and spent his last days in the Genovese captain's house. On the mysterious pilot see O'Gorman, Edmundo, La idea del descubrimiento de América: Historia de esa interpretación y crítica de sus fundamentos (Ciudad de México: Centro de Estudios Filosóficos, 1951), 67–68Google Scholar. On different conceptions of discovery, see 32–44.
36 Kantorovich argues that ‘If A ‘discovers’ X but mistakenly identifies it with Y, we cannot say that A discovered X, even if X turns out to be useful and of interest.’ Scientific Discovery, 15.
37 This problem is sometimes discussed under the rubric ‘contiguity’ which is considered by international law as a ground for territorial acquisition. See Pharand, Donat, Canada's Arctic Waters in International Law (Cambridge: Cambridge University Press, 1988), 29CrossRefGoogle Scholar.
38 An objection to discovery rights already addressed by Caramuel, Theologiae Moralis, 71, n. 266.
39 So the Jesuit José de Acosta wrote in a book first published in 1590: ‘Everybody knows that many or even most of the regions that have been discovered in this New World have been discovered in this way, more thanks to the violence of tempests than to the good industry of the discoverers.’ de Acosta, José, Historia natural y moral de las indias, c. 19, 18 (Madrid: Historia 16, 1987), 109Google Scholar.
40 I would like to thank Cara Nine for this suggestion.
41 Pasteur, Louis, Œuvres complètes, Vol. 7 (Paris: Masson, 1939), 131Google Scholar.
42 Dworkin, Ronald, Sovereign Virtue (Cambridge, MA: Harvard University Press, 2000), 73Google Scholar.
43 de Freitas, De iusto imperio, c. 3 n. 14 at 17B. On the Portuguese's marked predilection for discovery claims, see Seed, Patricia, Ceremonies of Possession in Europe's Conquest of the New World 1492–1640 (Cambridge: Cambridge University Press, 1995), 100–07Google Scholar.
44 See Seed, Ceremonies, 107–20, 291, and Alegría, Maria Fernanda, Daveau, Suzanne, García, João Carlos and Relaño, Francesc, ‘Portuguese Cartography in the Renaissance’, in Woodward, David (ed.), The History of Cartography, Vol. 3 (Chicago: Chicago University Press, 2007), 997–1068Google Scholar.
45 For example, Simon, Robert, ‘Deserving to be Lucky: Reflections on the Role of Luck and Desert in Sports’, 34 Journal of the Philosophy of Sport (2007) 13–25CrossRefGoogle Scholar.
46 Gans, Chaim, ‘Historical Rights: The Evaluation of Nationalist Claims to Sovereignty’, 29 Political Theory (2001) 59–62CrossRefGoogle Scholar.
47 A classic defense of an interest theory of rights can be found in Raz, Joseph, The Morality of Freedom (Oxford: Clarendon, 1986), 166Google Scholar.
48 One modern defender is H. L. A. Hart, who defines having a right as ‘being in the position to control the performance of a duty’ in Essays on Bentham (Oxford: Clarendon, 1982), 189Google Scholar.
49 Simmons, A. John, The Lockean Theory of Rights (Princeton: Princeton University Press, 1992), 93Google Scholar.
50 Finnis, John, Natural Law and Natural Rights (Oxford: Clarendon, 1980), 208Google Scholar.
51 Simmons, The Lockean Theory of Rights, 93.
52 See Elden, Stuart, The Birth of Territory (London and Chicago: University of Chicago Press, 2013)CrossRefGoogle Scholar.
53 Miller, Territorial Rights, 253; Simmons, The Lockean Theory of Rights, 187.
54 Simmons, A. John, Boundaries of Authority (New York: Oxford University Press, 2016), 5CrossRefGoogle Scholar.
55 Chris Armstrong, Justice and Natural Resources, 22–23 after Ostrom, Elinor, ‘Private and Common Property Rights’, in Bouckaert, B. and De Geest, G. (eds), Encyclopedia of Law and Economics Vol. II: Civil Law and Economics (Cheltenham: Edward Elgar), 339Google Scholar; Moore, Margaret, A Political Theory of Territory (Oxford: Oxford University Press, 2015), 167CrossRefGoogle Scholar.
56 Moore, A Political Theory of Territory, 167–70.
57 I do not discuss here the openness of other approaches such as Liberal Nationalist, Self-Determination, and Kantian or Legitimacy-based approaches to discovery rights. While none of these approaches endorses discovery rights over unoccupied land, there is nothing in them that necessarily rules them out.
58 See Miller, Territorial Rights, 258, where he argues that territorial rights require a transformative relationship to land effected through long occupation which makes the territory ‘materially valuable because it has been improved in a way that reflects their [the occupant group's] needs and cultural values’, as well as symbolically transformed.
59 Steiner, Hillel, ‘Territorial Justice’, in Caney, Simon, George, David and Jones, Peter (eds), Natural Rights, International Obligations (Boulder: Westview, 1996), 144Google Scholar.
60 Cara Nine, Global Justice and Territory, 41.
61 Also Meisels, Territorial Rights, 147.
62 In an earlier article, Nine rejects the possibility of territorial rights over unoccupied lands partly because territorial rights imply the rule of law, and the law rules only over persons. This seems true of the jurisdictional element of territorial rights. However, it is less true of a different element, namely the property-like right over natural resources. Nine, ‘Territory in a World of Limits: Exploring Rights to Oil and Ice’, in Leonard, Liam, Barry, John and de Geus, Marius (eds), Environmental Philosophy: The Art of Life in a World of Limits (Bingley, UK: Emerald Press, 2013), 149CrossRefGoogle Scholar.
63 Lord Howe Island was almost certainly never settled before, partly because it was difficult for Polynesians to sail in its direction. Anderson, Atholl, ‘Investigating Early Settlement on Lord Howe Island’, 57 Australian Archaeology (2003) 98–102CrossRefGoogle Scholar.
64 Nine, ‘Claiming the Arctic’, 24.
65 Nine has subsequently explored an alternative approach based on compromise between claims, partly motivated by the irrelevance of settlement and adjacency claims, which do not apply in much of the Arctic. See ‘Compromise and Original Acquisition: Explaining Rights to the Arctic’, 32 Social Philosophy and Policy (2015), 149CrossRefGoogle Scholar. More recently, she has explored the application of Pufendorf's criteria for the acquisition of territorial rights over ocean portions to questions concerning passage and exploitation of Canada's Northern Passage. See Nine, Cara, ‘Right to the Oceans: Foundational Arguments Reconsidered’, Journal of Applied Philosophy 2019(36): 626–642CrossRefGoogle Scholar.