George K Paul writes about the genesis of international law.

I’m writing this article at a time when television and online media are replete with discussions on the Russian military campaign against Ukraine—oftentimes on the morality of such an act of aggression between nations. Law is commonly understood as ‘law of the land’, but incidents such as these make us realise the need for a law that is binding between lands. Could a state be held up to moral accountability in the way it interacts with other states? Is a state morally culpable for its crimes against another people? Is there any circumstance where military invasion is justifiable?

Such questions were brought into sharp focus in 16th century Spain during the Age of Discovery, when reports of Spanish abuse of peoples of the New World sparked a profound crisis of conscience among a considerable segment of the Spanish populace, including prominent Catholic theologians and philosophers. The debates and reflections that ensued led to the emergence of modern international law.

Fr Francisco de Vitoria OP was professor at the University of Salamanca at the time. He took upon himself the mission of ensuring that Christian moral principles would be the guiding light in the use of Spanish political power. He gave a notable series of lectures in 1532, which were eventually published as Relección de los Indios, or Readings on the Indians which laid out essential elements of international law. He and other Spanish theologians looked at the morality of Spanish behaviour in the Americas. Did the Spanish have a legal right to claim lands in the Americas on the Crown’s behalf? What were their responsibilities to the indigenous people? As a result of these concerns, there arose more general and universal questions regarding interactions between nations.

Being a Dominican, Fr Vitoria’s writings were rooted in the Thomistic enunciation of natural law (ius naturae) which according to Aquinas, is ‘the participation in the eternal law by rational creatures’ (ST I.II. 91. 2 in c). The divine law, which proceeds from grace, does not annul human law, which proceeds from natural reason. Being created in the image of God, the unique value and dignity bestowed on human beings by Christian doctrine is the starting point of Vitoria’s work. No other species could claim the level of regard that man deserved from his fellow humans. The rights of all human beings, such as not to be killed, expropriated, and so on, stem from their status as humans rather than as members of the Church. Father Domingo de Soto, Vitoria’s colleague at the University of Salamanca, avers: ‘Those who are in the grace of God are not a whit better off than the sinner or the pagan in what concerns natural rights.’ In terms of natural rights, the Indians of the New World were on par with the Spaniards because they were men. They controlled their lands according to the same principles as the Spaniards. Vitoria also asserted, along with his fellow scholastics Domingo de Soto and Luis de Molina, that pagan princes ruled legitimately. For Vitoria, natural law existed not just among Christians but among all peoples.

Michael Novak, author of The Universal Hunger for Liberty, calls Vitoria a man who ‘proposed for the first time international law in modern terms.’ According to historian James Brown Scott, Vitoria ‘furnished the world of his day with its first masterpiece on the law of nations in peace as well as in war.’

It was not just the scholars who criticised the transgressions of the Spanish authorities, but ordinary clergy were among some of the first voices that denounced Spanish colonial policy. Thomas Woods writes, ‘In a dramatic sermon on the text “I am a voice crying in the wilderness,” a Dominican friar named Antonio de Montesinos, speaking on behalf of the island’s small Dominican community, proceeded to level a series of criticisms and condemnations at Spanish policy toward the Indians. According to historian Lewis Hanke, the sermon, delivered with important Spanish authorities in the audience, ‘was designed to shock and terrify its hearers.’ This incident led to a series of events that culminated in Montesinos and his superior being summoned by the Spanish crown to give an explanation for his troublesome sermons. After listening to them, the king called together a group of theologians and jurists to develop laws that would govern Spanish officials in their interaction with the natives. In this way were born the Laws of Burgos (1512) and of Valladolid (1513).

The best-known native critic of Spanish policy was bishop Bartolomé de Las Casas who proposed that Aristotle’s views on natural slavery be abandoned, since ‘we have in our favour Christ’s mandate: love your neighbour as yourself . . . although he [Aristotle] was a great philosopher, study alone did not make him worthy of reaching God.’ Las Casas worked tirelessly for about half-a-century on behalf of the natives, seeking reforms in their treatment. Las Casas’s arguments, writes Professor Lewis Hanke, ‘strengthened the hands of all those who in his time and the centuries to follow worked in the belief that all the peoples of the world are human beings with the potentialities and responsibilities of men.’

While discussing the origins of international law, there are complaints about Eurocentrism, but we must bear in mind that the modern state is an altogether European idea. When the first modern states began to emerge in Europe in the 15th century, the rest of the world had empires and kingdoms. Francisco de Vitoria, followed by Alberico Gentili, and Hugo Grotius are rightly regarded as the fathers of international law by contemporary theorists.


James Brown, The Spanish Origin of International Law

Lewis Hanke, The Spanish Struggle for Justice in the Conquest of America

Thomas E Woods Jr., How the Catholic Church Built Western Civilization

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