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.

Lockean approaches to property take it that persons can unilaterally acquire private ownership over hitherto unowned resources. Such natural law accounts of property rights are often thought to be of limited use when dealing with the complexities of natural resource use outside of the paradigm of private ownership of land for agricultural or residential development. The tragedy of the commons has been shown to be anything but an inevitability, and yet Lockeanism seems to demand that even the most robust common property arrangements be converted to privatized units. This often motivates a move away from natural law in the moral analysis of property rights. I argue however that it is not the deontological nature of Lockean principles that are at fault, but rather the manner of their application. Lockean theory often exhibits a bias in favour of private property: assuming that only private property can protect one’s interest in autonomy, and therefore asserting that each individual has a power of private acquisition. Starting with a claim against interference however enables us to mould the appropriate property rights to each individual’s particular interest in autonomy. This sometimes leads to private ownership, but often leads to various forms of commons.