Discovery Rights and the Arctic

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.