An American law professor says the Russians weren't indulging in a quaint but meaningless ritual when they used a sub to plant their flag on the seabed beneath the north pole. He says that, as far as North America is concerned, "finders, keepers" is very much the law of the land. Robert J. Miller, a professor at Lewis & Clark Law School in Portland, Oregon, writes in the LA Times that the "Doctrine of Discovery" is alive and well.
The flag-planting ritual and the thinking behind the Russians' audacious territorial claims have their roots in the development and use of the Doctrine of Discovery by European and American explorers from the 15th through the 20th centuries. Starting with Pope Nicholas V in 1455, the Europeans conveniently declared their divine right to empty land or to land occupied by "pagans and enemies of Christ." The main requirement was just first-come, first-served discovery.
Canada is also facing off against Denmark over tiny Hans Island near northwestern Greenland. In 1984, Denmark's minister for Greenland affairs landed on the island in a helicopter and raised the Danish flag, buried a bottle of brandy and left a note that said "Welcome to the Danish Island." Canada was not amused. In 2005, the Canadian defense minister and troops landed on the island and hoisted the Canadian flag. Denmark lodged an official protest.
Planting a flag or burying brandy isn't enough these days to guarantee possession -- international treaties such as the United Nations Convention on the Law of the Sea are invoked. But historically, staking a physical claim is the first rule of the discovery doctrine. Spanish, Portuguese and, later, English and French explorers engaged in all sorts of rituals on encountering new lands: hoisting the flag, displaying the Christian cross and leaving evidence to prove who was there first.
As early as 1790, federal law reflected the discovery doctrine, but it wasn't until 1823 that the doctrine was formally recognized by the U.S. Supreme Court -- and its full meaning spelled out. In the Supreme Court case Johnson vs. McIntosh, about whether private citizens could purchase Indian lands, Chief Justice John Marshall, in a long, detailed opinion for a unanimous court, established that discovery had been the law on the North American continent since the beginning of European exploration. Indian rights "to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it."
In short, Indians couldn't sell their tribal lands to private citizens because their conquerors -- the U.S. government by then -- essentially owned them. Today, that aspect of the 600-year-old Doctrine of Discovery still prevails in U.S. and international law. It remains the principle by which the United States, Canada, New Zealand and Australia continue to control the lands of their indigenous peoples.
As to the larger principle of "finders (or claimers) keepers," it also lives -- notwithstanding international treaties. The proof is in that symbolic Russian flag planted 2.65 miles below the North Pole, at the potentially lucrative, already contested bottom of the deep blue Arctic sea.