Rights of Conquest, Discovery and Occupation, and the Freedom of the Seas: a Genealogy of Natural Resource Injustice

Abstract

This paper analyzes the colonial origins of three international law principles – the right of conquest, the right of discovery and occupation, and the freedom of the seas. I argue that each of these rights was established as an international legal principle to facilitate the colonization of distant peoples, their territories and lands, and for the purpose of the accumulation of their natural resources. The paper discusses how these rights were justified, what set of exclusive powers and immunities they conferred, and how they are linked to three distinct modern legal regimes of rights over natural space and its resources – territorial sovereignty, private property rights to foreign land, and global maritime commons. While I expose each of these international law principles’ morally arbitrary origins reflecting specific conditions and aims of particular colonial projects, I also argue that the regimes of rights over natural resources they institutionalized are convergent in the sense that they enabled a quintessentially unjust appropriation and exploitation of natural resources. The article also points to ways in which the logic and the operation of these regimes continue to shape the unjust use of natural resources to this day.