It is a familiar scene in art and film. A pantalooned explorer wades ashore and plants a flag on a beach, often a tropical one. He strikes a stately pose and pronounces (in the film versions), “I claim this land in the name of England” or Spain or Portugal or France or whichever country was out exploring in the name of discovery and colonization that day.
So much B.S., you say? Well, unless your name was Cook or Magellan or Hudson, when you returned home you stood a fairly good chance of presenting a new piece of the empire to the king or queen under the doctrine of terra nullius, often followed shortly thereafter by systematic oppression of the indigenous populations.
Even when Columbus sailed for the Americas, terra nullius, which is Latin for “nobody’s land,” was an ancient doctrine. Derived from the 1095 papal bull, Terra Nullius, of Pope Urban II, it essentially allowed Christian-European states to claim land inhabited by non-Christians or penguins.1
In 1823, terra nullius was espoused and essentially adopted by Chief Justice John Marshall and a unanimous Supreme Court in the case of Johnson v. M’Intosh.2 In a decision rejecting a private right to acquire land from Native Americans, thus leaving that right solely to the federal government, which the Court found had a right of preemption over Native American lands, Justice Marshall went far afield and pontificated on a much larger issue in setting forth what has become known as the “discovery doctrine.”
Justice Marshall’s opinion begins with a lengthy discussion of the European discovery of the Americas and the legal foundations of the American colonies, including a focus on the manner in which European nations “acquired” land from the indigenous occupants. These included references to the 1455 papal bull Romanus Pontifex approving Portugal’s claims to lands discovered along the coast of West Africa, as well as the 1493 papal bull Inter Caetera that ratified Spain’s right to conquer newly found lands after Columbus had already begun doing so.3
In so finding, Justice Marshall added that Spain’s right of conquest did not rest solely on the pope’s blessing, but also “on the rights given by discovery.”4 With respect to the colonies from which our nation arose, the United States essentially inherited the rights of Great Britain. Justice Marshall wrote:
On the discovery of this immense continent, the great nations of Europe ... as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. This principle was that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession. ... The history of America, from its discovery to the present day, proves, we think, the universal recognition of these principles.5
The decision, of course, is not without controversy. Prof. Stuart Banner, at UCLA School of Law, writes of the case:
Johnson’s continuing prominence is reinforced every year in law schools, where it is the very first case most beginning students read in their required course in Property. The best-selling property casebook calls Johnson ‘the genesis of our subject’ because it lays ‘the foundations of landownership in the United States.’ Given current sympathies for Native Americans, the outcome of the case has come to be viewed with disapproval in law school. Johnson has joined Dred Scott v. Sandford and a few others to form a small canon (or maybe an anti-canon) of famous cases law students are taught to criticize. The leading casebook describes the philosophy underlying Johnson as ‘discomforting’ and quotes with approval the recent view of a law professor that Marshall’s opinion ‘was rooted in a Eurocentric view of the inferiority of the Indian people.’ Johnson, though, might be the only member of this anti-canon that remains the law, and that is still cited as authority by lower courts several times a year.6
Almost 500 years after Columbus landed somewhere on Hispaniola, another ship of a far different kind touched down on a distant, strange and alien shore. One of the two intrepid explorers on board set foot on the sandy surface first, yet did not proclaim the land for any country. Instead, he pronounced a “giant leap for mankind.” When Neil Armstrong and Buzz Aldrin planted the American flag on the lunar surface a few hours later, their gesture was symbolic only and, yet, controversial because of the Outer Space Treaty of 1967.
When signed, the treaty had three parties — the United States, the United Kingdom and the Soviet Union. Since then, some 125 countries have signed on. In the context of this article, the treaty explicitly forbids any government from claiming a celestial body such as the moon or a planet as its territory or property, on grounds that they are the common heritage of mankind. As stated in Article II of the treaty:
Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.7
The notion of a “common heritage of mankind” dates back to Immanuel Kant’s essay, “Toward Perpetual Peace.” Kant proposed that cooperative “use of the right to the earth’s surface which belongs to the human race in common” would “finally bring the human race ever closer to a cosmopolitan constitution.”
The concept of a “common heritage of mankind” was first mentioned in the preamble to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, which states in part:8
The High Contracting Parties,
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