Right of Conquest and Freedom of the Seas. On the Origins of Natural Resource Injustice

The paper looks at two foundational principles of international law – the right of territorial conquest and the freedom of the seas – and discusses their role in the establishment of the global order of rights to natural resources. The origins of these two principles are traced to two European colonial projects – the Spanish conquest of the Americas and the establishment of the Dutch trading empire in the East Indies. The paper analyzes how particular historical conditions of each of these colonial projects provided fertile ground for the forging of the two legal doctrines, how they justified the colonization of distant peoples and their lands and resources and with what consequences – and how they continued to facilitate the accumulation of natural resources in the long history of imperial expansion. The main point of the paper is to show that both of these rules of international law shaped and structured two distinct modern legal regimes of rights over natural space – territorial sovereignty and global commons – which now complement each other in the geospatial global order of rights to natural resources. The paper argues that the uncovering of the colonial origins of this order enables to identify the main dimensions of resource injustice which continues to characterize the appropriation and the use of natural resources to this day. Three main categories of resource injustice associated with this dual order of territorial sovereignty and global commons are identified: 1) the injustice of lawless capture of resources (forceful, violent, unlawful, or illegitimate establishment of property rights), 2) the injustice of distributive inequality (inequality of the distribution of opportunities, benefits, and burdens related to the use of natural resources), and 3) the injustice of corrupt rule (the use of natural resources for the exclusive benefit of the sovereign and the perpetration of an unjust rule).