From Discovery to Rediscovery: The Economic Absorptive Capacity of Palestine

The concept of “discovery” in international law was famously articulated by Chief Justice John Marshall. In a series of cases, notably Johnson v. McIntosh (1823), Marshall expounded on the legitimacy of claims made by European powers during the 15th and subsequent centuries as they took possession of foreign lands. Although control could be established by conquest, purchase and treaty, Europeans could also validate claims through discovery. If these territories were not inhabited by fellow Christians and subject to a European monarch, they could be claimed by the European states that “discovered” and colonized them. In effect, the rights of natives were not considered. While discovery may seem less relevant today, and its legal standing challenged because it bypasses the rights of the indigenous, note that “discovery” is still operative in the modern world where explorers expect to lay national claims to hitherto uncharted areas in Antarctica, on the ocean floor, and in space. Moreover, it is still cited in the United States to validate rights to lands that indigenous people inhabit or claim.