Abstract
Why, in the course of the 19th century, did legal scholars come to treat State territory as State property? This essay recounts a history of “title” to territory, as sovereignty became territorial and the State became an owner of territory. The comparison of international law and private law encouraged the treatment of territory as property, and was substantiated through prize law, colonial acquisitions of imperialism, and the analogy between the State and individual, with international leases and eminent domain modeled after property transactions. Recent affirmations of aboriginal title, however, raise the possibility of realignment among sovereignty, territory, and title.
Highlights
In the 19th century, when scholars of international law discussed “the rights of State territory” or a State’s “rights of property,” a persistent difference was the analogy between State territory and private property
In the course of the 19th century, did legal scholars come to treat State territory as State property? This essay recounts a history of “title” to territory, as sovereignty became territorial and the State became an owner of territory
The comparison of international law and private law encouraged the treatment of territory as property, and was substantiated through prize law, colonial acquisitions of imperialism, and the analogy between the State and individual, with international leases and eminent domain modeled after property transactions
Summary
In the 19th century, when scholars of international law discussed “the rights of State territory” or a State’s “rights of property,” a persistent difference was the analogy between State territory and private property. This essay undertakes a history of the concept of title in order to explain how State territory came to be called State property In his seminal work of 1927, Private Law Sources and Analogies in International Law, Hersch Lauterpacht 277-291) was keen to question “by what power we Christians were empowered to take possession” of the territory of the “Indian barbarians” of the New World He judged that natural law did not recognize any right or title by discovery or by grant of the Pope, or because God had ordained the King of Spain to become Master of the World, or because of the heathen status of the Indians. Hold the Indians guilty of having violated the Spaniards’ natural rights to travel and to trade, which justified Spanish punishment, enslavement, and eventual rule of Indians’ lands
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