Perceptions of the Influence of Francisco de Vitoria on the Development of International Law in 21st Century discourse

Gerrit Altena U1274635 October 2020 Tilburg Law School Supervisor: Dr. Inge van Hulle

Contents:

Chapter 1: Introduction…………………………………………………………………………………………………………2

Chapter 2: Francisco de Vitoria and the Development of Humanitarian Intervention……………9

Chapter 3: Francisco de Vitoria and the Secularization of International Law…………….………...21

Chapter 4: Francisco de Vitoria as the Founder of International Law……………………………….....27

Chapter 5: Conclusion………………………………………………………………………………………………………….37

Bibliography…………………………………………………………………………………………...... 43

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Chapter 1: Introduction

The work of Francisco de Vitoria has always evoked conversation. Pufendorf and Kant could not agree on whether the work of the 16th Century Spanish clergyman and lecturer represented a defence or an attack on the native population of the Americas. Their disagreement has carried forth until this day.1 The conversation received renewed attention at the turn of the 20th Century, when American jurist James Brown Scott proclaimed Vitoria to be the founder of international law, as opposed to Hugo Grotius.2

Who was Francisco de Vitoria?

Not much is known with certainty about the early life of Francisco de Vitoria. There is even disagreement over both Vitoria’s birthplace and the year of his birth. The former is said to be either Vitoria, the modern-day capital of Basque country, or Burgos.3 With regards to the year of his birth, there used to be a consensus on 1492. Vitoria, however, became a deacon in 1507, which would mean he would be 15 years old at that time. According to Hernández, it was impossible at the time to be a deacon at that age. The year 1483 is proposed as the likelier year of birth by Spanish historian Arriag4, though the more recent work by Van Liere places his birthyear at 1486.5 But, as James Brown Scott aptly pointed out, “For him, as well as for us, the important matter is that he was born.”6 Vitoria’s academic life has been

1 Andrew Fitzmaurice, ‘The Problem of Eurocentrism in the Thought of Francisco de Vitoria’, in J.M. Beneyto & J.C. Varela (eds), At the Origins of Modernity: Francisco de Vitoria and the Discovery of International Law (Springer 2017) 77-93 2 Ibid 80 3 Ramón Hernández, ‘The Internationalization of Francisco de Vitoria and Domingo de Soto’ (1991) 15(4) Fordham International Law Journal 1031 4 Ibid 5 Katherine Elliott van Liere, ‘Vitoria, Cajetan, and the Conciliarists’ (1997) 58(4) Journal of the History of Ideas, 597 6 James Brown Scott, ‘Francisco de Vitoria: Prima Professor of Theology at Salamanca’ in The Spanish Origin of International Law: Francisco de Vitoria and his Law of Nations (The Clarendon Press 1934) 70 2 discussed a couple of times elsewhere, for our scope it is important to note that Vitoria joined the Dominican order at a young age and went to Paris to study and eventually teach.

Then he returned to Spain, first to Valladolid and lastly to the University of Salamanca, where he took on the primary of two chairs in theology.7 Here, he revived the scholastic method.

As a scholastic, the Bible is the most important influence for Vitoria’s thought. Next to the

Bible and Aristotle, who has always been a major source of influence for scholastics, he and his fellow academics from The Second Scholastics (Also known as the School of Salamanca) extensively used Saint Thomas Aquinas, a fellow Dominican and scholastic.8 These are direct influences in the sense that Vitoria cites them in his lectures, but there are a number of other influences that have often been ignored.

Van Liere makes the point that the effects that political and ecclesiastical power have on one another were always on Vitoria’s mind, as a result of him being a part of the Church. This means that even when Vitoria is not talking or writing about the Church explicitly, he has considered the implications of his ideas on the Church. Van Liere uses the example of

Vitoria’s relectiones de Indiis, which were inspired both by “the plight of the American

Indians under Spanish colonial rule” and by “his protracted struggle with the theological

7 More detailed histories of Vitoria’s academic life are given in Ramón Hernández, ‘The Internationalization of Francisco de Vitoria and Domingo de Soto’ (1991) 15(4) Fordham International Law Journal 1031, 8 Matthias Kaufmann, ‘Die Referenzautoren der Schule von Salamanca und andere Vorläufer im Mittelalter’, in K. Bunge, M. J. Fuchs, D. Simmermacher, & A. Spindler (eds), The Concept of Law (Lex) in the Moral and Political Thought of the 'School of Salamanca' (Brill 2016) 9-31

3 implications of natural law theory”.9 To merely categorize Vitoria as a Catholic would be a simplification of his religious influences. As mentioned before, Vitoria was part of the

Dominican Order, which had a couple of ideals that other Christian orders did not have.

Emanating from France, the Dominicans spread rapidly across Medieval Europe. A great number of influential thinkers were taught through Dominican education. Perhaps the most famous of all is Saint Thomas Aquinas, who -as mentioned above- was a major influence on

Vitoria. What set the Dominican Order apart from other Catholic orders was a focus on both preaching and teaching. Friars were also required to live in poverty, but the Dominicans were not unique in this aspect.10 Based on the teaching focus, a lot of Dominican missionaries were sent to the New World. Dominicans in Europe often held teaching positions at universities. Furthermore, the Dominicans had a cosmopolitan world view and the ideal of equality.11 Because of the connection with missionaries in the New World,

Vitoria had information on the relations between the natives and the Spanish, as is evidenced by a couple of personal letters that survived.

Aside from the reformation, there was disagreement among Christian theologians in

Vitoria’s formative years. Vitoria was witness to a polemic between Cardinal Cajetan and

Jacques Almain. This debate was revolving around the topic of conciliarism, which was a movement attempting “to modify and limit papal control over the Church by means of

9 Katherine Elliott van Liere, ‘Vitoria, Cajetan, and the Conciliarists’ (1997) 58(4) Journal of the History of Ideas, 597 10 Daniel Prudlo, ‘The Friars Preachers: The First Hundred Years of the Dominican Order’ (2010) 8(11) History Compass 1275 11 Beatriz Salamanca, ‘Early Modern Controversies of Mobility within the Spanish Empire: Francisco de Vitoria and the Peaceful Right to Travel’ (2015) 3(1) Tropos 14 4 general councils”.12 While Vitoria reportedly ‘admired’ conciliarist Almain’s work, agreeing with the proposition that Popes had too much power and that councils were necessary to keep the papacy in check, he did not agree with the underlying structure of argumentation, agreeing in this sense with anti-conciliar writers such as Cardinal Cajetan, but also Juan de

Torquemada, both Dominicans too.13

Additionally, when Ernest Nys was tasked by James Brown Scott in the early 20th Century to write an introduction on de Indiis, a couple of influences of Vitoria were mentioned that do not receive attention in other works. Even though the discourse surrounding Vitoria in the

20th Century has received a lot of criticism regarding anachronism,14 a discussion of his influences and predecessors does put Vitoria into his temporal and cultural context and could therefore be a useful addition to the analysis of Vitoria’s influences. Nys, for example, points to the influence of Peter Crockaert, who introduced Vitoria to the Summa Theologica of Thomas Aquinas.15

Some writers make the point that the historical events of Vitoria’s time -i.e. The (counter-

)reformation, invasions by the Ottoman Empire and the discovery of America- must have had an enormous impact on his thinking next to being influenced by his peers and

12 Antony Black, ‘The Conciliar Movement’ in J. Burns(ed), The Cambridge History of Medieval Political Thought c. 350 - c. 1450 (1988 Cambridge University Press) 537-587 13 Katherine Elliott van Liere, ‘Vitoria, Cajetan, and the Conciliarists’ (1997) 58(4) Journal of the History of Ideas, 597 14 For example from Andrew Fitzmaurice, ‘The Problem of Eurocentrism in the Thought of Francisco de Vitoria’, in J.M. Beneyto & J.C. Varela (eds), At the Origins of Modernity: Francisco de Vitoria and the Discovery of International Law (Springer 2017) 77-93 and Martti Koskenniemi, ‘Colonization of the 'Indies': The Origin of International Law’ (2010) La idea de la América en el pensamiento ius internacionalista del siglo XXI 43 15 Ernest Nys, (1917). ‘Introduction’, in F. d. Vitoria, & J. B. Scott (Ed.), Franciscus de Victoria De Indis et De Ivre Bellis Relectiones (1917 Carnegie Institution J. P. Bate, Trans., Vol. 7) 55-100

5 predecessors. Justenhoven, for instance, identifies the struggle between French King Francis

I and Charles V, weakening the Habsburg Empire, as an important event for Europeans during Vitoria’s time because together with the reformation it challenged the Medieval ideal of a united Christianity.16 The world in which Vitoria found himself was in between two epochs of world history: The Middle Ages on the one hand, and modernity on the other. The result of this was an outburst in creativity, but also uncertainty about how to respond to new developments.17

All of the above has in some way contributed to the lectures Francisco de Vitoria gave in

Salamanca. These lectures were transcribed by students. These transcripts, in combination with some surviving lecture notes of Vitoria himself, make up what we now see as his body of work. The most influential works are collected in their translated form in Francisco de

Vitoria: Political Writings, which features a lecture on civil power, two on the power of the church, a lecture on Aquinas’ Summa Theologica, one on dietary laws and two on the

American Indians. The latter two, commonly called De Indis, are the most cited works of

Vitoria in relation to international law and colonialism.

The re-evaluation of Vitoria

In the area of the history of international law, there has lately been a lot of discussion surrounding the subject of methodology. This discussion was partially triggered by alternative histories of international law, written by authors subscribing to the Third World

16 Heinz-Gerhard Justenhoven, ‘Francisco de Vitoria: Just War as Defense of International Law’, in H.-G. Justenhoven, & W. A. Barbieri Jr., From Just War to Modern Peace Ethics (2012 De Gruyter) 121-135 17 Alex J. Bellamy, ‘Francisco de Vitoria (1492-1546)’, in D. R. Brunstetter, & C. O'Driscoll (eds), Just War Thinkers From Cicero to the 21st Century (2018 Routledge) 77-91

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Approaches to International Law (TWAIL), an academic school that rejects the modern-day international law regime as neo-colonial. These alternative histories have often been denounced as employing anachronisms and cherry-picking to make a pre-determined point.

Furthermore, an increase in interest in the field of international legal history has also contributed to the discussion. This increase in interest is related to discussions about neo- colonialism and humanitarian intervention.18

Vitoria has received a re-evaluation as a result of these alternative histories of international law. He has been connected to the colonial exploitation of the Americas and is seen by some authors as an accomplice for later acts of (neo-)colonialism too. In the literature on Vitoria, placing him both in a positive and negative light, there is one assumption that remains unchallenged: That he has been instrumental in the development of international law, so much so that he is often regarded as the founder of international law replacing Hugo

Grotius, who had the honour before Vitoria. The origin of this claim, at least in modern literature, can be found in the texts of the American jurist James Brown Scott. Scott’s other ideas on Vitoria have been rejected since then, but the assumption that Vitoria was particularly important for international law remains to have authority.

Because the idea that Vitoria was so important for the development of international law appears in nearly all modern histories of international law, it is important to research to what extent the assumption holds true. When it has been established what role Vitoria

18 See, for instance, Randall Lesaffer, ‘International Law and its History: The Story of an Unrequited Love’, in M. Craven, M. Fitzmaurice & M. Vogiatzi (eds), Time, History and International Law (2006 Martinus Nijhoff) 27-41 and Martti Koskenniemi, ‘Vitoria and Us: Thoughts on Critical Histories of International Law’ (2014) 22 Journal of the Max Planck Institute for European Legal History 119 7 played, we can discuss histories of international law more critically. Set within the larger debate of international legal history about methodology, lessons can be learnt with respect to whether or not the perceived problems only appear in the TWAIL literature, or if they are also persistent in the more traditional literature as well.

Based on the gap in the literature described above, the aim of this thesis is to evaluate the influence that Francisco de Vitoria has had on international law and how any possible misconceptions could have influenced the 21st Century discourse on Vitoria. The scope is limited to the 21st Century for reasons of feasibility and because it matches with the timeframe in which critical histories of international law started to get published.

Methodology

In order to achieve what was set out above, there will first be close attention to the ways in which Vitoria is said to have been influential. These are divided into two subjects: humanitarian intervention (Chapter 2) and the secularization of international law (Chapter

3). These two subjects encompass all that international law was at that moment in time: Just war doctrine, discussions on whether there was a dominus mundi, the sources of international law, the sovereignty principle, et cetera. In both these subjects, the roots of

Vitoria’s ideas, Vitoria’s contributions towards the respective facet of international law, and the influence that Vitoria’s ideas have had on future writers will be discussed.

Then, a more general analysis will be given on the claim of Vitoria being instrumental in the development of international law. What are the roots of this claim, and what arguments can be made in favour and against it? Also, is the title of founder of international law arbitrary

8 and should it even matter? This, together with an analysis on how conceptions and misconceptions on whether or not Vitoria is the founder of international law have shaped present-day discourse, will form Chapter 4. The concluding Chapter 5 will provide an overview of all the results and give an answer to the initial question.

Chapter 2: Francisco de Vitoria and the development of humanitarian intervention

In the literature on Vitoria, one of the central themes is his involvement in the development of humanitarian intervention. While it is generally accepted that humanitarian intervention was not a term that existed in the time of Vitoria,19 it has also been asserted that Vitoria played an important role in the development of the concept. Bain, for example, characterizes the literature to this point by prescribing Vitoria the role of providing “both historical precedent and legitimizing gravitas”.20 Meanwhile, Muldoon notes that there is an abundance of earlier examples of humanitarian intervention, though without mention of that specific term, citing both the Aeneid and Kipling’s White Man’s Burden in the process.

The latter example was of course written after Vitoria, but before humanitarian intervention was an established term.21 The question arising is how unique the historical precedent was that Vitoria provided us with and, if he gave legitimizing gravitas, how did his ideas on the defence of the innocent survive until the moment when we could speak of humanitarian intervention in the form that we know today.

19 See, for instance, Beate Jahn, ‘Humanitarian Intervention – What’s in a Name?’ (2012) 49(1) International Politics 38 and James Muldoon, ‘Francisco de Vitoria and Humanitarian Intervention’ (2006) 5(2) Journal of Military Ethics 128 20 William Bain, ‘Saving the Innocent, Then and Now: Vitoria, Dominion and World Order’ (2013) 34(4) History of Political Thought 588 21 James Muldoon, ‘Francisco de Vitoria and Humanitarian Intervention’ (2006) 5(2) Journal of Military Ethics 128 9

In the following chapter, Vitoria’s place within the development of humanitarian intervention will be looked at by discussing his predecessors, his own contribution, and the influence he has had on others. In order to do so, the concept of humanitarian intervention will have to be unpacked. The term did not exist yet in Vitoria’s time, so the attitudes of

Vitoria and his predecessors towards the composing parts humanitarian intervention will be discussed.

What is humanitarian intervention?

One modern definition of humanitarian intervention goes as follows: “the use of military force, across state borders, to prevent or alleviate egregious and widespread human rights abuses, without -and against the wishes- of the state in which human rights abuses are taking place.”22 Other modern definitions are not too different, suggesting that this is indeed the customary way in which the term is explained.23 From this definition it is immediately clear why humanitarian intervention is a modern term that did not exist in Vitoria’s time. In fact, it could not have existed in its current form, as there were no codified human rights, and the Westphalian state system was not yet in place either. Furthermore, state borders were not always as clearly defined as they are today.

Even so, there are several elements that can be identified in humanitarian intervention.

Firstly, there is the use of force. This element, which requires no explanation, is the central action of humanitarian intervention. Even though weapons and tactics have obviously

22 Edward Newman, ‘Humanitarian Intervention, Legality and Legitimacy’ (2002) 6(4) The International Journal of Human Rights 102 23 J. L. Holzgrefe, ‘The Humanitarian Intervention Debate’, in J. Holzgrefe & R.O. Keohane (eds), Humanitarian Intervention: Ethical, Legal, and Political Dilemmas (2003 Cambridge University Press) 15-52 10 changed since Vitoria’s time, use of force has not changed in its essential meaning of targeted violence. Secondly, the element of across state borders is a bit more complicated, as it was unclear in Vitoria’s time -and even today in some cases- what constituted a state and what the legal effects of a border exactly were. There was, however, definitely an idea of statehood and foreignness, Vitoria acknowledged that in some cases the Native populations of the Americas formed principalities. The next element is “to prevent or alleviate egregious and widespread human rights abuses”. As mentioned elsewhere, there was no universally accepted codification of human rights such as the Universal Declaration of

Human Rights would be today. In deciding what was just in the international sphere, many looked towards Christian principles or simply what was beneficial to themselves. The last element is that all of the above happens against the wishes or without the consent of the state in which it happens. The point regarding state borders applies here as well, with the addition that under normal circumstances a state would need the consent of another state when using force in its territory. This is part of the principle of sovereignty, which was not fully developed yet in the 16th Century. Vitoria has also been connected to the development of the sovereignty principle.24 Contained in the sovereignty principle is the principle of non- intervention, which is the idea that is of relevance here.25

Essentially, the concept of humanitarian intervention is the interplay between the principle of sovereignty on the one hand and the necessity to use force in order to combat human rights abuses on the other hand. Humanitarian intervention is an exception to the right of

24 See, for example, Antony Anghie, ‘Francisco de Vitoria and the Colonial Origins of International Law’, in Imperialism, Sovereignty and the Making of International Law (2004 Cambridge University Press) 13-31 and Beate Jahn, ‘Humanitarian Intervention – What’s in a Name?’ (2012) 49(1) International Politics 37 25 Terry Nardin, ‘The Moral Basis of Humanitarian Intervention’ (2002) 16 Ethics & International Affairs 57 11 sovereignty, and as such has to meet a few criteria, such as the existence of human rights abuses. As human rights were not really an established concept yet, people in Vitoria’s time needed to find another legal code to legitimize the use of force in foreign lands to, essentially, prevent bad things from happening to other peoples. In more abstract terms, humanitarian intervention is a balance between politics and morality.26

In today’s discourse the idea that humanitarian intervention -and human rights itself- is a tool of colonialism or neo-colonialism has gained traction.27 The idea was already posed by

Carl Schmitt when he said that “The concept of humanity is an especially useful ideological instrument of imperialist expansion, and in its ethical-humanitarian form, it is a specific vehicle of economic imperialism.”28 The recent scrutiny of the principle is linked to the appearance of third world approaches to international law. How the work of Francisco de

Vitoria fits within this modern discourse is discussed later on.

Vitoria’s predecessors

Muldoon has mentioned that the history of humanitarian intervention, or at least of the interplay between the basic principles that are foundational to the concept, can be traced back to the Roman Empire. In literature, the principles are recognizable in the Aeneid, which shows that the moral aspects of humanitarian intervention were already accepted back then. As such, it is no surprise that the person credited with just war doctrine lived in the

Roman Empire. Saint Augustine of Hippo reconciled the pacifism of Christianity with the

26 Beate Jahn, ‘Humanitarian Intervention – What’s in a Name?’ (2012) 49(1) International Politics 37 27 Susan Koshy, ‘From Cold War to Trade War: Neocolonianism and Human Rights’ (1999) 58 Social Text 1 28 Carl Schmitt, The Concept of the Political (George Schwab translation 2007 University of Chicago Press)

12 political need of the time to wage war with Barbarians. His solution was that violence was only permitted in the face of sin.29 Saint Thomas Aquinas later elaborated on the concept.

Among the people influenced by Saint Augustine and Saint Thomas was Pope Innocent IV, who added to the development of humanitarian intervention an analysis on property that would become influential in the creation of the principle of sovereignty. Pope Innocent asserted that God had given the Earth to all men, but that the disagreements that ensued from competing rights over the land had required the concept of possession to be invented.

This concept of possession, then, emanated from human nature, and not from God. As such, possession was not divine law, but human law and was therefore outside the scope of the

Church. As such, one’s religion was not important in the determination of possession, including the possession of territory. This became the basis of a universal conception of sovereignty.30 That said, Innocent claimed that war for the sake of natural law had to be authorized by the Pope.31

Apart from the Roman roots of humanitarian intervention, there is a Christian foundation as well. As noted by Neff, the Christian attitude towards war was one of radical pacificism.

Augustine, again, reconciled this view with political realities by framing war as a duty invoked by another state’s injustice. Thereby it was the foreign power that was the cause for war, the good Christian just had to reluctantly obey his duty in this respect. This attitude explains the animus element of the just war framework as well.

29 Steven P. Lee, ‘The Origins of the Just War Tradition: Augustine’ in Steven P. Lee, Ethics and War: An Introduction (2012 Cambridge University Press) 42-45 30 William Baine, ‘Saving the Innocent, Then and Now: Vitoria, Dominion and World Order’ (2013) 34(4) History of Political Thought 594 31 Terry Nardin, ‘The Moral Basis of Humanitarian Intervention’ (2002) 16 Ethics & International Affairs 57 13

The famous Dominican scholastic Saint Thomas Aquinas developed a framework for legitimizing war: the just war framework. While very influential as a whole, the part that is especially relevant here are the requirements of a just cause for war (iusta causa) and of the right spirit (animus). The just cause of humanitarian intervention is, as we have seen, human suffering. The defence of innocent, as it became known, existed as a moral principle before

Vitoria. The teacher of Peter Crockaert, John Mair, wrote in 1509 that the defence of the

Church was a just cause for war.32 In canon law, the principle of the defence of innocent was well-established before Vitoria was even born, bearing in mind all accounts of his actual birth date.

Closer to Vitoria’s time, the Englishman Thomas More published his famous work Utopia. In it there was a section on the Utopians liberating oppressed peoples in the name of humanity,33 while, as noted above, Muldoon mentioned a section in the Aeneid that characterized the role of the Roman Empire as protecting the weak. While Virgil wrote in a different context with regards to the order of states or empires, Thomas More lived in a time when the just war framework was the paradigm and when European powers were in the process of colonizing the rest of the world. More thus took the step to transform just war theory from being limited to interstate wrongs to encompassing domestic wrongs abroad.34

32 Daniel Schwartz, ‘The Principle of the Defence of the Innocent and the Conquest of America: ’Save Those Dragged Towards Death’‘, (2007) 9 Journal of the History of International Law 263 33 Thomas More, Utopia, (George M. Logan & Robert M. Adams edition, 1989 Cambridge University Press) 87- 88. 34 Terry Nardin, ‘The Moral Basis of Humanitarian Intervention’ (2002) 16 Ethics & International Affairs 57 14

Vitoria’s contribution to the development of humanitarian intervention

On the subject of sovereignty, which is part of humanitarian intervention and an implicit concept in just war doctrine, Vitoria was inspired by Pope Innocent IV’s analysis of property.35 Vitoria expanded upon this that the ‘Barbarians’ in the Americas were not natural slaves in the Aristotelian sense and were therefore capable of holding dominion over property.36 Vitoria’s contribution in this area was limited to secularization, which will be discussed in the third Chapter. Suffice to say that the ideas of Vitoria on sovereignty were not as revolutionary as is sometimes portrayed.

The other side of the balancing act that is humanitarian intervention is humanitarian concerns. Being heavily influenced by fellow Dominican Saint Thomas Aquinas, Francisco de

Vitoria subscribed to Aquinas’ just war framework, which stipulated, amongst several other requirements, that the cause for war was just. The balancing between non-intervention and the protection of the innocent was done by embedding humanitarian concerns in the just war framework. What we would call humanitarian concerns, were for Vitoria natural law violations. These violations mentioned by Vitoria, and often repeated in modern literature on Vitoria, were cannibalism, human sacrifice and sexual offences, among other things.37

While these natural law violations seem unacceptable in today’s world, one of the modern criticisms on Vitoria is that he employed a very Euro-centric and Christian view on what was good and bad and applied it to other cultures.38 This is also one of the arguments of TWAIL

35 William Baine, ‘Saving the Innocent, Then and Now: Vitoria, Dominion and World Order’ (2013) 34(4) History of Political Thought 592 36 Francisco de Vitoria, ‘De Indis’, in A. Pagden & J. Lawrance (eds), Francisco de Vitoria: Political Writings (1991 Cambridge University Press) 231-292 37 ibid 38 Antony Anghie, ‘Francisco de Vitoria and the Colonial Origins of International Law’, in Imperialism, Sovereignty and the Making of International Law (2004 Cambridge University Press) 13-31 15 authors against the current international human rights law regime. Either way, the original just war framework, as developed by Saint Thomas, did not include the protection of the innocent as a just cause. Protection of the innocent had been applied to the Just War doctrine before Vitoria. Vitoria’s contribution in this regard is limited to the fact that he was the first one to apply the just cause of protection of the innocent to the Americas, thereby popularizing it.

The shift from punishment of violations to protecting the innocent is significant. As opposed to the other just causes of war established in the just war doctrine, no injury had to be inflicted upon the state that uses protection of the innocent as a just cause. Logically this broadened the scope of possibilities to engage in war, but, as the just war framework revolved around natural law according to Vitoria, the protection of the innocent also bestowed an obligation upon nations to protect the innocent abroad whenever they could.

Going back to the modern definition of humanitarian intervention, the responsibility to protect is one of its core elements, and we can clearly distinguish such a responsibility emanating from the idea of protection of the innocent as a just cause for war.

The other relevant part of Aquinas’ just war framework, the animus, did not receive as much attention. For the initial question that Vitoria tried to answer (whether or not the children of infidels could be converted without the consent of their parents), this made sense: Any action abroad in the spirit of the pastoral mission was ipso facto a good animus for the devout Christian that Vitoria was. That the pastoral mission was quite clearly not the only reason, or even the main one, for Spain to go to the New World was at best an accidental oversight or naivety on Vitoria’s part, at worst a deliberate oversight to legitimize colonial

16 exploitation. To the latter view’s credibility, it should be noted that Vitoria’s right of free movement as a iusta causa included the right to economic exploitation of unused lands.

Significant here is that Vitoria based his analysis of just titles to foreign intervention on natural law, as opposed to divine law, though this was by no means innovative as Pope

Innocent IV already stated the same. Vitoria’s views on natural law were obviously based on a Christian, Eurocentric morality, but authors claim that this is proof of Vitoria being something of an early cosmopolitan.39 This would coincide with the universality of

Dominican thinking. At least in theory it provided the opportunity for non-believers or heretics to be part of Vitoria’s conception of the just war framework. On the other hand, it could be seen as an early manifestation of Western, Christian ideals being forced on the rest of the world under the guise of human rights.

All in all, the contribution of Vitoria towards the development of humanitarian intervention is not very far-reaching. At most he popularized several notions that had existed prior to his

De Indis and De Indis Relectio Posterior. What was novel, however, was that Vitoria applied the existing ideas of just war and the defence of the innocent to the colonial encounter.

Vitoria’s influence

Based on the previous section, Vitoria’s contribution to the development of humanitarian intervention is summarized as applying the protection of the innocent abroad as a iusta causa in the just war framework to the colonial encounter. This laid the groundwork for

39 Georg Cavallar, ‘Vitoria, Grotius, Pufendorf, Wolff and Vattel: Accomplices of European Colonialism and Exploitation or True Cosmopolitans?’ (2008) 10 Journal of the History of International Law 181 17 human rights violations to be considered a reason for foreign intervention in later times. The two central elements of Vitoria’s contribution are, then, the use of just war doctrine and the focus on protecting the innocent over punishing the violators. While these contributions were not necessarily innovative, they had an impact on the further development of humanitarian intervention. From a TWAIL perspective, the contributions and influence of

Vitoria put a theoretical foot in the door of all non-European territories. Either way, it remains to be seen whether or not it was Vitoria’s work that has been relied upon by later authors to develop more mature theories of humanitarian intervention, or whether his work was a dying strain.

In the early 17th Century, Hugo Grotius published his seminal work On the Law of War and

Peace. For a long time, Grotius was seen as the founder of international law.40 It was the period in which the nation-state was emerging, which significantly altered relations between territorial spheres of influence (first commonwealths or empires, and in Grotius’ time nation- states). Natural law as the basis for international relations was replaced by a focus on state practice.41 Perhaps a consequence of the reformation, which meant that there was a higher degree of religious diversity within Western Europe (the Orthodox Schism of 1054 was not as influential, as the Eastern European powers did not expand into Asia, Africa or the

Americas), resulting in a diversification of morals and religious authority. At this point in time, the just war doctrine was already a piece of history. The religious foundations resulting

40 See, for example, Charles H. McKenna, ‘Francisco de Vitoria: Father of International Law’ (1932) 21(8) Studies: An Irish Quarterly Review 635 41 Stephen C. Neff, ‘New Forces Stirring (1600-1815)’, in Stephen C. Neff, War and the Law of Nations: A General History (2005 Cambridge University Press) 85-93 18 in the need for a just cause for war were replaced by the more practical concerns of the nation-state.

The just war doctrine, then, did not survive for a long time in the way it existed in Vitoria’s work, but that does not necessarily mean that Vitoria’s ideas in this area were completely without influence. Because the sovereignty principle is still of immense importance in international law today, only profoundly serious violations of international law justify the use of force in foreign territory. Human suffering is still often regarded as a sufficient justification, although geopolitical reasons are often the underlying arguments for the decision on whether or not to intervene, as the difference in response to human rights violations in Libya and Syria showcase.42 In that sense, a critical reader could find traces of

Vitoria: Using human suffering as an excuse to overrule the sovereignty principle in order to attain other goals. Whether or not that was the actual intention of Vitoria remains unknown, though his inclusion of economic exploitation of foreign lands in the right to free movement seems to indicate he was concerned with more than just the pastoral mission or human suffering.

In extension of the just war doctrine lays the shift from punishing violators to protecting the innocent. In modern times it is unclear if this notion still holds any sway. The rhetoric of humanitarian intervention indicates that the protection of the innocent is the prime motivator for international actions. The advent of international criminal law through various special tribunals and the International Criminal Court seems to show that there is a renewed

42 Spencer Zifcak, ‘The Responsibility to Protect After Libya and Syria’ (2012) 13 Melbourne Journal of International Law 59 19 concern for punishing the violators, but in the responses to the ICC Africa crisis, it is noticeable that even in punishing the violators, the importance of justice is mostly attributed to the interests of the victims.43 Furthermore, a responsibility to protect is said only to be evoked in post-colonial states, and as such the balance between sovereignty and the responsibility to protect seems to be different for ‘developed’ states as opposed to

‘developing’ states.44 This political reality is similar to the one of Vitoria’s time, and indeed similar to Vitoria’s thoughts on the matter.

On the matter of sovereignty, Antony Anghie argues that Vitoria had set in motion a

‘dynamic of difference’ between ‘civilized’ and ‘uncivilized’ peoples, where the principle of sovereignty was not as strong for the uncivilized based on Eurocentric ideas of humanitarianism. In this regard, whether or not Vitoria came up with his ideas himself is not important, the fact that he applied them to the colonized world is central. It is, however, doubtful that Vitoria’s application of older theories to the Americas has changed the course of action of the colonizing powers in his own time and later, it appears naïve to state that the European powers only exploited the rest of the world because an independent jurist allowed them to.

43 Jean-Baptiste Jeangène Vilmer, ‘The African Union and the International Criminal Court: Counteracting the Crisis’ (2016) 92(6) International Affairs 1319 44 Ibid 20

Chapter 3: Francisco de Vitoria and the secularization of international law

Vitoria is quite often credited with turning international law from a Christian practice under the authority of the Vatican to a secularised system.45 This claim is made on the basis that

Vitoria denied the Pope both global civil and spiritual jurisdiction. The importance of this claim is that it made international law a universal field, as it, theoretically at least, included the non-Christian world on an equal basis. Because of this, Vitoria has been characterized as an early cosmopolitan.46 In earlier systems of rules between states, people and states were distinguished based on religion, both in the Christian and Islamic world.47 We have briefly examined Vitoria’s removal of Papal jurisdiction in the context of humanitarian intervention, but whether or not Vitoria’s ideas amounted to the secularisation of international law deserves explicit consideration because of the aforementioned importance of this development. How Vitoria’s supposed secularisation of international law has inspired the further development of international law and how Vitoria’s contributions towards secularisation are received in 21st Century discourse will be discussed at the end of this chapter. First, we will examine what Vitoria’s influences were with regards to the secularisation of international law and then what Vitoria’s own contributions were towards this end. In other words: How important were Vitoria’s contributions towards the secularization of international law?

45 See Antony Anghie, ‘Francisco de Vitoria and the Colonial Origins of International Law’, in Imperialism, Sovereignty and the Making of International Law (2004 Cambridge University Press) 13-31 and James Muldoon, ‘Francisco de Vitoria and Humanitarian Intervention’ (2006) 5(2) Journal of Military Ethics 128 46 Georg Cavallar, ‘Vitoria, Grotius, Pufendorf, Wolff and Vattel: Accomplices of European Colonialism and Exploitation or True Cosmopolitans’ (2008) 10 Journal of the History of International Law 181 47 Stephen C. Neff, ‘Loving Enemies and Hating Sin’, in S. Neff, War and the Law of Nations: A General History (2005 Cambridge University Press) 39-82 21

The secularisation of international law in the present context means that the (in Europe) generally accepted overarching rule of the Pope regarding worldly matters by way of divine and canon law and papal bulls was replaced by a system of natural law and morality, in which there was no clear overarching ruler (i.e. a dominus mundi). The investiture controversy in the 11th and 12th Centuries showed that there had already been friction between Church and state in Europe before, but this had not led to a secularisation of international law.

Vitoria’s predecessors

As we have noted in the previous chapter, Francisco de Vitoria owed a lot of his ideas to

Pope Innocent IV. In the secularisation context, however, Vitoria disagreed with Pope

Innocent’s idea that war on natural law grounds had to be authorised by the Pope. Though it is perhaps unsurprising that a Pope argued for papal jurisdiction, it is noteworthy that Vitoria disagreed with him because of the implications this has had on the question of jurisdiction and authority of sovereigns. Vitoria’s ideas on papal jurisdiction made him fall into the favour of the Spanish crown, as multiple European heads of state -including those of the

Spanish Empire- were in conflict with the Pope over the worldly powers of the Pope. As a result, denying the Pope universal jurisdiction meant that Vitoria’s stature rose significantly, which in turn amplified the impact of his other ideas. Specifically in the present context, though, Pope Innocent is not an inspiration of Vitoria.

As mentioned in Chapter 2, Pope Innocent IV made an important analysis on the foundation of property. This was important for the development of humanitarian intervention, but it was also a development towards the secularization of international law. Before Innocent’s

22 analysis, it was widely established within Europe that there was no legitimate power outside of the Church (Extra ecclesiam non est imperium), meaning that all worldly power of sovereigns existed by the grace of the church, and thus the Pope. Innocent’s view on possession, and the implications this had on the sovereignty of non-believing powers, was in direct opposition of the idea of extra ecclesiam non est imperium. Innocent therefore established that there was legitimate power outside the Church.48

Vitoria, however, was not the first person to nip at the heels of the Pope. Importantly there was a group of academics, philosophers and theologists that were critical of the worldly powers of the Pope: the conciliarists. A short and crude version of what the conciliarists wanted is that the power of the Church resided in an ecclesiastical council, with the role of the Pope being relegated to a more symbolic one. During Vitoria’s time in Paris, there was considerable debate at the Parisian university between conciliarists and their opponents. It is remarked by Van Liere that Vitoria looked up to several conciliarists.49 Since there is no record of Vitoria attributing his views on papal jurisdiction to the conciliar movement, it cannot be said for certain that this movement is where he got his idea from, but the undisputable fact that he was familiar with the thought of the conciliar movement means that denying the Pope jurisdiction was not very outlandish for Vitoria.

Besides persons being of influence on Vitoria, the events of his time might have impacted his thoughts on the role of the Church in international law as well. As Justenhoven mentioned,

48 William Baine, ‘Saving the Innocent, Then and Now: Vitoria, Dominion and World Order’ (2013) 34(4) History of Political Thought 593-594 49 Katherine Elliott van Liere, ‘Vitoria, Cajetan, and the Conciliarists’ (1997) 58(4) Journal of the History of Ideas, 597 23 the Medieval ideal of Christian unity was falling apart around Vitoria. The conciliar debate is just one example of this, the reformation and inter-European wars provide further gravitas to Justenhoven’s claim. In the midst of the crumbling Christian unity, it was a natural development that the Pope’s worldly powers were to be reconsidered.

The just war framework, which was one of the central theories within Vitoria’s analysis of the legality of the Spanish presence in the Americas, was conceived by theologians and had

Christian and Roman roots. It was invented in Rome but was fully developed in Medieval

Europe as a response to the seemingly perpetual state of war in Europe.50 The framework was not Christian in essence though, “the ethos of just-war doctrine, in brief, was that of the lawyer rather than the priest, of the rationalist rather than the zealot.”51

Vitoria’s role in the secularization of international law

In the introduction of Vitoria’s first lecture on the power of the Church, he recalls that the etymological origin of Church is the Greek word ekklesia, which means council or coming together. Vitoria juxtaposes this with the word Synagogue, used in Judaism, which means to herd together. For Vitoria, the assembly and the coming together entails rationality, whereas the herding together is reserved for cattle.52 One cannot be certain that this is a reference to the conciliarist view of power in the Church, but it shows that Vitoria must have seen absolute power of the Pope within the Church as irrational. This is significant for the way

50 Jonathan Barnes, ‘The Just War’, in Norman Kretzmann et al (eds), The Cambridge History of Later Medieval Philosophy (Cambridge University Press 2008) 771 51 Stephen C. Neff, ‘Loving Enemies and Hating Sin’, in S. Neff, War and the Law of Nations: A General History (2005 Cambridge University Press) 39-82 52 Francisco de Vitoria, ‘De Potestate Ecclesiae Prior’, in A. Pagden & J. Lawrance (eds), Francisco de Vitoria: Political Writings (1991 Cambridge University Press) 45-108

24

Vitoria would have seen the power of the Pope towards worldly matters in that it, as a consequence of Vitoria’s view on the Pope’s role within the Church, makes no sense that the

Pope could independently rule over such matters when he could not even do so on religious matters. Vitoria notes later on that “no single man would ever be capable of fulfilling all the administrative duties of both the ecclesiastical and civil commonwealths, or of learning the separate disciplines involved in each; nor, however clever he might be at each, could he have the time to attend properly to both.”53 It is unclear at this point in Vitoria’s analysis whether he refers to national or international power. In principle, the idea would apply to both spheres, but the origin of the claims of the Pope as a dominus mundi comes from the idea that there needs to be some kind of overarching authority to settle differences of sovereigns and that the Pope, because of Biblical considerations, was the perfect person.54

Bearing in mind Vitoria’s influences regarding secularisation, it appears as though the denial of worldly powers to the Pope has been a natural development. Nevertheless, this is the area in which Vitoria’s greatest contribution to the development of international law lays.

No one before him had stated so bluntly that the Pope could not have both spiritual and worldly powers at the same time. Besides, Vitoria envisioned a world without a dominus mundi. This is in contrast with most of his predecessors. The conciliarists, for example, saw the ecclesiastical council as the dominus mundi, while Pope Innocent IV saw the Pope as such. The idea that there was no overarching ruler constituted a paradigm shift that coincided with the falling apart of Christian unity and therefore made sense, but it was

53 Francisco de Vitoria, ‘De Potestate Ecclesiae Prior’, in A. Pagden & J. Lawrance (eds), Francisco de Vitoria: Political Writings (1991 Cambridge University Press) 45-108 54 Anne Orford, ‘Jurisdiction Without Territory: From the Holy Roman Empire to the Responsibility to Protect’ (2009) 30(3) Michigan Journal of International Law 981 25

Vitoria who identified this and applied it to real life situations such as the questions revolving around the Americas.

The influence of Vitoria’s contributions

With regards to the influence that Vitoria’s ideas had over his contemporaries and successors, a link has been drawn between Vitoria’s denouncement of the Pope’s worldly authority -more concretely the inter caetera- and English colonial claims by Dee and

Hackluyt.55 Although the two mentioned writers did not explicitly refer to Vitoria, it is by no means a stretch of the imagination that they were aware of Vitoria’s works. It is therefore definitely a possibility that Vitoria’s secularisation of the international law, though not necessarily new, was quite influential. Getting rid of a dominus mundi definitely opened the door for Hugo Grotius to write about the freedom of the sea. Grotius was not only aware of

Vitoria, he even cited him on numerous occasions.56

Coming back to the modern discussion surrounding Vitoria’s impact on international law, some writers note that recent academic work into Vitoria’s political thoughts has largely ignored Vitoria’s ideas on the relation or conflict between civil power and ecclesiastical power, even though it was seen as central to Vitoria’s ideas.57 It is in some cases noted that

Vitoria secularized international law, even though it is apparent that there were many others before him who doubted that the Pope had worldly powers. How this idea existed in the

55 Christopher Tomlins, ‘The Legalities of English Colonizing: Discourses of European Intrusion upon the Americas, C. 1490-1830’, in S. Dorsett & I. Hunter (eds), Law and Politics in British Colonial Thought: Transpositions of Empire (2010 Palgrave Macmillan) 51-70 56 Johannes Thumfart, ‘On Grotius’s Mare Liberum and Vitoria’s De Indis, Following Agamben and Schmitt’ (2009) 30 Grotiana 65 57 Nathaniel Mull, ‘Divine Law Divided: Francisco de Vitoria on Civil and Ecclesiastical Powers’ (2020) Intellectual History Review Accessed 30 September 2020

26 context of a century-long conflict between Popes and Heads of State is something that is hardly ever explored.

In one of the most influential critical histories of international law, Antony Anghies

Imperialism, Sovereignty and the Making of International Law, it is claimed that before

Vitoria, order between states was decided by applying Church jurisprudence in which divine law was the most important category of law. Vitoria changed this to make way for his own system of law in which he could provide the Spanish crown with plenty of reasons to exploit the newfound lands without interference of the Pope. Regarding secularisation, Anghie has exactly identified the main contribution of Vitoria and the importance this had for the

Spanish Empire. It is deeply cynical on Vitoria’s intentions, but from the frame that Anghie has chosen, this makes a lot of sense.

More broadly, whenever Vitoria’s secularisation efforts are mentioned, they are generally in line with the conclusions drawn here. A large chunk of the literature completely ignores

Vitoria’s thoughts on the relation between Church and state, however, even though it is central to all his work, albeit sometimes implicitly.58

Chapter 4: Francisco de Vitoria as the founder of international law

For an awfully long time, there was a near consensus on Hugo Grotius being the founder of international law. His important works almost coincided with the Peace of Westphalia and the advent of the nation state. At the turn of the 20th Century, however, American jurist

58 Katherine Elliott van Liere, ‘Vitoria, Cajetan, and the Conciliarists’ (1997) 58(4) Journal of the History of Ideas, 597 27

James Brown Scott popularized the idea that it was not Grotius, but Francisco de Vitoria who founded international law.59 This idea became the new consensus, perhaps helped by the stature of James Brown Scott, founder of the American Society for International Law, prominent member of the American Peace Society and part of the American delegation for the Hague treaty negotiations.60 James Brow Scott was connected so deeply with Vitoria that a mural of Vitoria in the American Department of Justice famously depicted Scott’s face in

Vitoria’s place.61

Most of what James Brown Scott has written on Francisco de Vitoria has in later times been rejected as anachronistic praise, riddled with interpretations favourable to Brown Scott’s worldview.62 The notion of Vitoria being the founder of international law has, however, stuck. It could be that this is simply because the idea has a lot of arguments in favour of it, that there has not been a feasible alternative or because it does not seem to matter all that much at first thought.

Even though it seems quite arbitrary, calling someone the founder of international law could have a number of important consequences. It assumes a starting point of international law, making all the ideas and developments before it of secondary importance. It also forms a risk

59 Pekka Niemelä, ‘A Cosmopolitan World Order? Perspectives on Francisco de Vitoria and the United Nations’ (2008) 12 Max Planck Yearbook of United Nations Law 301 60 Paolo Amorosa, ‘Explaining Scott’s Turn to American History’, in P. Amorosa, Rewriting the History of the Law of Nations: How James Brown Scott Made Francisco de Vitoria the Founder of International Law (2019 Oxford University Press) 33-56 61 Paolo Amorosa, ‘Introduction: An American Project’, in P. Amorosa, Rewriting the History of the Law of Nations: How James Brown Scott Made Francisco de Vitoria the Founder of International Law (2019 Oxford University Press) 1-16 62 Andrew Fitzmaurice, ‘The Problem of Eurocentrism in the Thought of Francisco de Vitoria’, in J.M. Beneyto & J.C. Varela (eds), At the Origins of Modernity: Francisco de Vitoria and the Discovery of International Law (Springer 2017) 77-93 28 of hugely inflating the contributions of the person that is called the founder of international law. Perhaps this was the case with Hugo Grotius, whose ideas are now seen as not altogether novel. lastly, with the advent of alternative critical histories of international law, there is the risk of grand narratives drawn across history based on unjust assertions of who founded international law.63

Whereas in previous chapters the specific areas of international law in which it has been claimed that Vitoria was influential have been looked at, in what follows Vitoria’s title of founder of international law will be discussed from the perspective of how this title originally came to be. Firstly, the literature arguing that Vitoria is deserving of this title will be looked at. Then, the arguments for and against Vitoria as the founder of international law are weighed against each other, so that we can forge an image of his status within the development of international law that is more nuanced than the one James Brown Scott has painted. After that, the impact that this literature has had on how he is received in the literature within the previously defined scope, the 21st Century, will be discussed in order to assess whether it actually matters for the overall discussion regarding Vitoria.

The origin of Vitoria’s title

In The Spanish Origin of International Law, James Brown Scott presents his arguments as to why he sees Francisco de Vitoria as the founder of international law. When talking about how Vitoria always looked at problems from multiple angles, Scott says that

63 Georg Cavallar, ‘Vitoria, Grotius, Pufendorf, Wolff and Vattel: Accomplices of European Colonialism and Exploitation or True Cosmopolitans?’ (2008) 10 Journal of the History of International Law 181 29

“He was a philosopher, not merely in the technical meaning but in that

larger sense which brings to the solution of a problem what we may call

the philosophical nature of things, being in all things a seeker after

fundamental truth, with the result that the solutions of his legal problems

are not merely true but establish what may be called the philosophy of

law.”64

So, Vitoria is not only credited with establishing international law, but also the philosophy of law, an equally interesting yet disputable title, but one that lays outside the scope of this thesis. The above quote does show the adoration that James Brown Scott had for Francisco de Vitoria. Furthermore, Scott claimed that Vitoria made precedent where there was no precedent. In other words, there was no one before Vitoria who wrote on what we would now call international law.

For a claim such as the one James Brown Scott made about Vitoria to be so influential, the person making this claim has to be influential as well. Scott certainly was very influential, at least in the field of international law. Scott was one of the founders of the American Society of International, which published the American Journal of International Law, one of the first academic journals dedicated to international law. He was also heavily involved in the

American Peace Movement, where he was part of a wave of international lawyers that took the forefront of the movement for a while.65 In the peace movement, he became acquainted

64 James Brown Scott, ‘Francisco de Vitoria: Prima Professor of Theology at Salamanca’, in J.B. Scott, The Spanish Origin of International Law: Francisco de Vitoria and his Law of Nations. (1934 The Clarendon Press) 68 65 C. Roland Marchand, ‘Courts, Judges, and the Rule of Law’, in C.R. Marchand, The American Peace Movement and Social Reform, 1889-1918 (1972 Princeton University Press) 39-73 30 with Andrew Carnegie, who later sponsored a series of republications of the founding texts of international law through his Carnegie Foundation. One of the first books in this series, the Classics of International Law, was De Indis, which collected the two surviving lectures of

Victoria on the question of Spanish legitimacy in the Americas. It featured a foreword by

Ernest Nys, who was equally positive about Vitoria.

Not only was J.B. Scott well-connected, he was also directly concerned with American foreign policy through his participation in the American delegation of the second Hague treaty negotiations in 1907. He was involved in the drafting of American nationality legislation as well. With the aforementioned in mind, it makes sense that Scott’s words carried weight in the early 20th Century. This changed, however, when a more critical evaluation of Vitoria’s role in the legitimisation of colonial exploitation came to the forefront.

In contemporary literature, it is accepted that the title of founder of international law came from J.B. Scott. Anghie, for instance, refers to the Classics of International Law series published by the Carnegie Endowment. This series, edited by James Brown Scott, published

Vitoria’s two lectures on the American Indians. Anghie mistakenly claims that the series commences with Vitoria’s work, even though they are neither the first published volumes in the series, nor the oldest texts published in the series. Volume 1 contains a text by Richard

Zouch and Volume 8 contains a text by John of Legnano from the fourteenth Century, two centuries before Vitoria.

31

Why Vitoria is the founder of international law

Even though Vitoria did not come up with the majority of the constitutive elements of his ideas on the order of the world, there are some reasons supporting the claim that he founded international law. Carl Schmitt noted that the concept of world order, and consequently international law, could only exist from the time onwards that human beings had an idea of what the world spatially was. Only after the discovery of the new world and the insight that the earth was round, could someone think about international law in the proper sense.66 As such, it is not only the fact that Vitoria synthesized the various ideas into an international law, but also the time in which he did so, the historical epoch of colonization, that makes the claim of Vitoria being the founder of international law worthy of consideration.

Disregarding Schmitt’s view that international law could only exist from the moment that humanity was aware of what the world was from a special point of view, there is a host of other arguments in favour of the claim. When accepting that Vitoria has truly secularized international law, one could argue that international law came into existence when the overarching power of the Church was null and voided. Before that, the relations between nations were adjudicated by the Pope. In that sense, the law of nations was canon law, and not international law.

Furthermore, Vitoria combined all elements of what we would now call international law in his analysis on the Spanish presence in the New World, whether these elements were his

66 Carl Schmitt, Der Nomos der Erde (G.L. Ulmen translation 2006 Telos Press Publishing)

32 own innovations or not. Perhaps it is by this synthesis that international law was born. One would agree that the inventor of the wheel did not invent the car, international law is arguably the same.

Lastly, when adopting the frame of TWAIL, it makes sense to pose Vitoria as the founder of international law. When viewing international law through the lens of colonialism and neo- colonialism, the start of international law is necessarily during or at the beginning of

European colonial expansion. Vitoria perfectly fits this timeframe. Besides, Vitoria’s ideas can easily be explained as a legitimization of said colonial expansion, and from the perspective of TWAIL it is unimportant that he disagreed with the violent treatment of the natives, as evidenced by the letter he sent to Miguel de Arcos in 1534.67 There is a debate on the methodology of this approach, with Cavallar for example warning of false grand narratives being made,68 but Koskenniemi notes that there is an infinite number of frames to choose from, so it is not a cardinal sin to not take them all into consideration.69

Why Vitoria is not the founder of international law

In contrast to the last subchapter, there is also a point to be made that it is wrongful to claim that Francisco de Vitoria is the founder of international law. The central argument being that, based on the chapters on Vitoria’s role in the development of humanitarian intervention and the secularization of international law, it is arbitrary to say that Vitoria is

67 Francisco de Vitoria, ‘Letter to Miguel de Arcos, OP Salamanca, 8 November [1534]’, in A. Pagden & J. Lawrance (eds), Francisco de Vitoria: Political Writings (1991 Cambridge University Press) 331-333 68 Georg Cavallar, ‘Vitoria, Grotius, Pufendorf, Wolff and Vattel: Accomplices of European Colonialism and Exploitation or True Cosmopolitans?’ (2008) 10 Journal of the History of International Law 181 69 Martti Koskenniemi, ‘Vitoria and Us: Thoughts on Critical Histories of International Law’ (2014) 22 Journal of the Max Planck Institute for European Legal History 119 33 the founder of international law. One could, for example, also point towards Pope Innocent

IV or Emperor Augustine. The constant exercise of looking at Vitoria’s predecessors in order to find the origin of the different elements of his idea of international law might seem a bit pernickety, but taken together, it brings home the point that there is not one specific founder of international law.

It was logical that there was renewed interest in the early 20th Century into who founded international law. This was not only because the American Peace Movement saw international law as a potential tool for world peace and therefore needed a champion. At the time, the Great Man Theory as written down by Thomas Carlyle still held sway over intellectual debates about history. Beside the discussion on whether or not we read Vitoria in his proper context, there should also be consideration of the contexts in which influential writers on Vitoria, such as James Brown Scott in this case, operated. Now that the Great Man

Theory has fallen into disuse, in academia at least, the conclusions drawn from it should also be reconsidered. As mentioned before, that has not really happened with regards to

Francisco de Vitoria and his reputation as founder of international law specifically.

Taking an institutional approach to international law, Vitoria cannot be the founder. In the strict sense he obviously did not found any of the important international law institutions nor did he codify rights and duties of states. In a broader sense, he did not envisage any kind of institutions of international law but depended on the sense of morality of states themselves. James Brown Scott figured that Vitoria envisaged some sort of institution similar to the League of Nations but, as we have noted before, the conclusions of James Brown

Scott on Vitoria are not to be taken seriously anymore.

34

The influence of the troublesome conception of Vitoria as founder of international law on 21st

Century debates

As demonstrated above, there are points to be made both in favour and against the idea that Francisco de Vitoria was the founder of international law. With this in mind it is agreeable that Vitoria’s status receives a nuanced treatment in modern literature. The overwhelming majority of work on Vitoria, however, features no discussion on James Brown

Scott’s claim that Vitoria founded international law. As it is mostly assumed that Vitoria did found international law, his stature and the influence of his ideas are therefore inflated.

It is impossible to conceive how the present-day literature on Vitoria or the history of international law would look like if his importance has not been inflated for a century, especially because his importance is often not referred to explicitly. Luckily, Antony Anghie made explicit reference in his seminal work Imperialism, Sovereignty and the Making of

International Law to the title of founder of international law given to Vitoria by James Brow

Scott.70 Anghie then uses the ideas put forward by Vitoria to explain that he established a

‘dynamic of difference’ between ‘civilized’ and ‘uncivilized’ societies that has survived until this day in the form of a distinction between ‘developed’ and ‘non-developed’ countries. It is outside the scope of this thesis to consider whether or not the entire theory of Anghie would hold up if he did not consider Vitoria as a starting point, though it is likely he would come to the same conclusion; Antony Anghie is a self-proclaimed TWAIL scholar and as such rejects the current international law regime because it is neo-colonial in his view. Even though

70 Antony Anghie, ‘Francisco de Vitoria and the Colonial Origins of International Law’, in Imperialism, Sovereignty and the Making of International Law (2004 Cambridge University Press) 13-31 35

Vitoria is an arbitrary starting point of international law, it makes sense from the context that Anghie employs: that of international law from the perspective of the colonized. The works of Vitoria coincide with the ‘colonial encounter’ (to use Anghie’s terminology), so if one person has to be chosen as a starting point, Vitoria is a suitable candidate. Nevertheless, and this is not necessarily important for the frame that Anghie uses, the use of Vitoria as a starting point of international law hugely inflates his importance for the field. The conception of Vitoria as founder of international law, then, influenced Anghie in the sense that he used Vitoria as a starting point in his history of international law, but this has most likely not changed the conclusions that Anghie drew about international law itself.

William Bain adds to the assertion of James Brown Scott that Vitoria was the founder of international law the characterization of Vitoria in Garrett Mattingly’s Renaissance

Diplomacy, in which Vitoria is said to be “more at home intellectually in the thirteenth and twentieth centuries than in the sixteenth century”.71 And while Bain is deeply sceptical of

Scott’s claims, he does note that Vitoria receives a lot of attention because his ideas are perceived to have been influential. Bain attributes the modern attention that Vitoria has received to Antony Anghie and Martin Wight. What all three have in common, is that they characterize the ideas of Vitoria as bringing order to a chaotic world, thereby not necessarily saying directly that Vitoria was the founder of international law, but definitely hinting at it.72

Niemalä, Endy and Anghie all mention that Vitoria is seen as the founder of international law based on James Brown Scott’s ideas, which leaves to the reader the consideration whether

71 William Baine, ‘Saving the Innocent, Then and Now: Vitoria, Dominion and World Order’ (2013) 34(4) History of Political Thought 588 72 Ibid 36 this notion is to be taken serious or not.73 There are also authors who simply state that

Vitoria came to be seen as the founder of international law, without any clear source for the claim. For instance, Hernandez notes that ‘Vitoria began to be recognized as the founder of international law’ without reference to James Brown Scott in the entire article.74

Interestingly, most of the literature that takes Vitoria as founder of international law for granted is from before the 21st Century, before the advent and later popularization of critical histories of international law. This suggests an acknowledgement for the increased importance that the title of founder of international law has gotten since critical, alternative histories of international law have charged the international law regime with neo- colonialism.

To summarize, the impact that the dubious claim that Vitoria is the founder of international law has had on 21st century receptions of Vitoria is that his influence is clearly overstated. It does not have an impact on the conclusions of critical histories of international law, though it makes the foundations of its narratives shaky.

Chapter 5: Conclusion

Francisco de Vitoria taught his students about a lot of aspects that are constitutive elements of international law. The subjects of his lectures included early forms of humanitarian

73 Pekka Niemelä, ‘A Cosmopolitan World Order? Perspectives on Francisco de Vitoria and the United Nations’ (2008) 12 Max Planck Yearbook of United Nations Law 301, Melvin Endy, ’Francisco de Vitoria and Francisco Suarez on Religious Authority and Cause for Justified War’ (2018) 46(2) Journal of Religious Ethics 289 & Antony Anghie, ‘Francisco de Vitoria and the Colonial Origins of International Law’, in Imperialism, Sovereignty and the Making of International Law (2004 Cambridge University Press) 13-31 74 Ramón Hernández, ‘The Internationalization of Francisco de Vitoria and Domingo de Soto’ (1991) 15(4) Fordham International Law Journal 1031

37 intervention, sovereignty and freedom of movement. Vitoria has not only entertained the minds of his contemporaries, there is still a lively debate on his legacy. All of the previous chapters were written with the objective of finding out whether the one unchallenged assumption on Vitoria could be challenged as well: whether he was actually as influential as is assumed in modern receptions of his work. Vitoria’s contributions to the development of international law plays a large role in this, but the way in which (mis)conceptions of his influence have had an impact on modern literature is also important in this consideration.

How influential was Francisco de Vitoria for the development of international law?

In order to properly answer the question of how important Francisco de Vitoria was for the development of international law, we must first know what international law is. It is evident that international law needs a pre-existing factor: multiple spheres of influence or territory, which we call states nowadays, but were called nations and commonwealths before as well.

In that sense, it is unlikely that there was something like international law when humanity was still in their hunter and gatherer stage. But beyond this, there are multiple ways of defining international law and its necessary pre-existing factors. One could see international law as a natural phenomenon that originates necessarily out of the contact that different human communities make with one another. Others might see it as a man-made tool to streamline those interactions. How one looks at international law decides for a large part who is considered to be the founder of it. Anghie and Schmitt, who are both critics of international law, and in particular of humanitarian intervention, see international law as something that was man made and that only arose after the colonial encounter. They see

Francisco de Vitoria as a clear starting point of international law. This thesis argues that the

38 development of international law was a gradual process that occurred naturally. If one follows this line of thought, there is no founder of international law.

Looking at the development of humanitarian intervention, Vitoria used existing theories of just war, sovereignty, rights of non-believers and the principle of defence of the innocent.

These principles had been combined before Vitoria as well. The novelty of Vitoria’s De Indis was that Vitoria applied all these principles to the Americas. Certainly not every individual would have been able to do so, as it required extensive knowledge on canon law, Roman legal principles and literature on natural law, but Vitoria’s ideas were not innovative in itself.

Vitoria made a bigger contribution towards the secularisation of international law. The authority of the Pope was not self-evident, bearing in mind the views of the conciliarists. The authority of the Church as an institution on the other hand was much more deeply entrenched in the thoughts of the 16th Century intellectual. As such, Vitoria’s denial of the

Pope’s and the Church’s authority on worldly matters either brought about a paradigm shift or coincided with it. It is most likely that the paradigm shift did not happen because of some lectures in Salamanca, however important the university was at the time. The ideal of

Christian unity was being torn apart by the reformation, intellectual strife within the Church and inter-Christian wars. This damaged the self-enforcing view of the Pope as dominus mundi.

With regards to the question whether or not Vitoria is the founder of international law, a relevant condition suggested by Carl Schmitt is that the entire world is in contact with each other. It was only after the European conquests in the Americas, Africa and Asia that this

39 happened for the first time. Therefore, this era provided the first opportunity for an international law regime to come about. Accepting Schmitt’s proposition, Vitoria is a logical option as the founder of international law. This coincides with the view of TWAIL scholarship, though their argument is that international law was created out of necessity to deal with the colonial encounter.

Whether or not Vitoria was the founder of international law depends entirely on what one takes international law to be. If it is the relation between states, it could not have existed before the system of states was in place. From an institutional perspective, it came into being when states started to codify the rules that they agreed upon.

If anything, all of the above has shown that the title of founder of international law is arbitrary and should not hold any value. Even worse, it distracts from more significant work in the field of the history of international law. But because the title does significantly influence discussions on the nature of international law as a whole, it is important to come to the realization that any such title is given on shaky, often arbitrary, grounds.

How does this influence the present-day discussions on Vitoria?

So far in the 21st Century, discussions about Vitoria revolve around the question whether or not he was an accomplice to European expansionism and the colonial exploitation that resulted from it. This contains both a factual and an ethical question; what was the impact of

Vitoria’s words on European expansionism and what should he have done or said?

40

The first question is difficult to answer. There is no scale on which the impact of ideas can be measured. The closest approximation one could give is that Vitoria’s words held weight in his own time due to the standing he had and that his words continue to hold weight due to the importance we give him in the development of international law. In this sense, his influence is self-validating.

Regarding the second question, it should be noted that the just war framework that Vitoria applied to the Americas originated from concerns about war within Europe. As such it is a

Eurocentric theory, but it was not invented with the goal of colonization. A scholastic applying existing theories to new situations is not surprising. There was no difference between the non-believers in the Americas and the ones in Europe (though pagans and heretics fell in a different category). It should be noted that Vitoria included exploitation of the land in his right of free movement, which gives credibility to the idea that it was Vitoria’s intention to legitimise colonial exploitation and that the Pastoral mission was merely a veil for this end.

Discussion

In gathering the sources for this thesis, there were a couple of concerns. It was important to consider authors from all over the world, as the present-day discussion about Vitoria concerns (neo-)colonialism and is largely fronted by a critical group of authors who identify with TWAIL. An attempt was made towards this end.

Another point of concern was the extensive use of the work of Carl Schmitt. Schmitt was involved with the Nazi regime before and during the Second World War. He was later barred

41 from German universities as he refused to denounce the regime after the war. It is questionable to use his work, thereby perhaps affirming his worldview, especially as the work used in this thesis is specifically about the way in which he sees the order of the world.

The decision was made to include his work because he was referenced by a large number of authors whose work appears in this thesis as well.

A brief note about some choices of words is appropriate too. Vitoria conveyed his ideas through lectures. The combined notes of several of his students is what makes up the texts that we know today of Vitoria. Throughout this thesis, Vitoria’s lectures were referred to as works or texts. While this is not technically correct, the choice was made for this terminology because most of the literature on Vitoria does so as well.

A similar choice regarding terminology had to be made regarding the native populations of the Americas. In this thesis, they are sometimes called American Indians. The reason for the use of this wrongful name is simply that Vitoria called the native populations by this name.

The same can be said about calling the Americas the New World, which is a very Eurocentric term, considering that there were already people living in the so-called New World. The same argument applies here.

There were other points mentioned where Vitoria is considered innovative and important for the development of international law. These include “the twofold notion of reciprocity

42 and equality”75, the right of free movement and Vitoria’s supposed cosmopolitanism. These were left out due to feasibility concerns.

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