A while ago I wrote a paper exploring the inapplicability of international law as a justification for colonial Spanish-Indian relations. Francisco da Vitoria’s point hinges on the universality of Natural law; all persons who operate through reason implicitly join the covenant of jus gentium—which is “what natural reason has established among all nations” (Anghie, 325). Vitoria’s error here lies in his disregard for explicitly expressed consent binding participants to the covenant, as well as his assumption that all Law (if we assume all law to have led from Natural Law) is enforced in the same way. I argue that jus gentium cannot possibly be universally applicable due to variations in regional practice and that participation in the covenant of jus gentium cannot, as in domestic law, be considered consent into the international legal scheme, as its very universality impedes participants from exiting it.
“What natural reason has established among all nations is called jus gentium … whose rules may be ascertained by the use of reason” (Anghie, 325). Francisco da Vitoria claims that because Indian and Spanish societies are set up similarly, that they all explicitly abide by the jus gentium. This law of the people however, differs according to locale. There are as many differences as similarities, and while these differences might seem particular to one society and inconsequential to the adherence of the general principles outlined by jus gentium. But the rules differ based on different localities—there’s no way for Vitoria to argue that the rules between European states and kingdoms do not vary, despite the jus gentium. This is not a difference due to religion, as they are all bound and governed by the Pope, but the rules vary according to sovereign. This guise of universality is the exact error as pointed out by Anghie (Anghie, 326). While the Indians may “seem to participate … as equals”, equals can come together from completely different perspectives. Reciprocity does not mean identicality of law, and it is absurd to assume that because the Indians are participants that they are fully aware of Spanish law (as European law is not even standardized across the continent, despite being based upon principles of Natural Law).
Additionally, express consent to the system must be given, and this consent can never be given or exited as Natural law is meant to be universal, and one cannot exit the universe. Socrates’s standard for living within a legal scheme follows. Prior to his death, Crito implores Socrates to escape his imminent execution. Socrates explains that he has bound himself to the laws of the City and therefore cannot illegally escape his prison, nor his fate.
We fathered you, brought you up, educated you, gave you and every other citizen a share in ever good thing it was in our power to give. And even then, if there is any Athenian who when he comes of age takes a look at his city’s constitution and at us, the laws, and finds that we are not to his satisfaction, then by granting him permission we make a public declaration to anyone who wishes that he may take what is his, and go wherever he pleases. … But we do say that anyone who chooses to remain after seeing how we reach verdicts in the courts and how we make our other political arrangements, has in effect come to an agreement with us to do what we tell him … We make him a fair offer—not harshly demanding that he do whatever we order, but allowing him a straight choice, either to make us change or minds or do as we say—and he does neither. (Plato, 129)
And Socrates is guiltier than most men, for he has participated more than most Athenians and never travelled outside his city. He did not even offer an alternate punition—he chose to enter and live within this framework, he expressly consented to live within these rules.
But this cannot be applicable in all cases, and especially not in international law, as there is no exit from the international system. Indians did not agree to live within the jus gentium, and so when there is a call for punition, there is no way to wage a just war against them as the only measure that can be undertaken is one of mediation and discussion.
Interestingly enough, which is where Anghie finds his criticism of Vitoria, Vitoria never bothers determining whether the Indians have consented to being a part of this system—he assumes that because they seem to live like the Spanish and have set up a sound society with similar laws, that they are followers of the same law (Natural Law) and that by “breaking” that law, just war can be waged against them.This conclusion brings us to the same one reached by Anghie in his paper: the establishment of international law is tied to the marginalization of foreign nations, in history, the Indians of North America. Vitoria “displaces divine law and its administrator, the Pope, and replaces it with natural law administered by a secular sovereign” (Anghie, 323). This is an issue because it means that the establishment of international law is concurrent with the establishment of the legal status of Indians (ibid).
According to Anghie, “Vitoria does not interpret the problem of Spanish-Indian relations as a problem of creating order among sovereign states” but as a problem of determining what is sovereign. The conclusion reached by Vitoria is illogical, then. Although Anghie and Vitoria concern themselves with the definition (or, as per Anghie’s criticism, the lack of definition) of sovereignty, the crucial aspect is the inapplicability of Vitoria’s judgment onto separate nations who have not explicitly consented to this framework—regardless of whether they are sovereign or not. Vitoria’s argument hinges on implied consent, based on the idea that the Indians live in a society with a similar socio-hierarchical framework as that of the Europeans. Because that consent is not expressed, Vitoria makes a fatal error in logic—and the implications on international law follow in Anghie’s stead, as well as colour our future relations and international legislation.
This logical flaw however, is still the idea that shaped our international legal system. As well, I wonder about the implications of this argument–if the openness of the system means that we cannot leave, how does this bode for adherence to particular international agreements? What effect does this have on non-state participants, who cannot enter into agreements (indigenous peoples, of course, but also individuals, or those outside of democratic institutions). In fact, I think we might come across some problems even in democracies, given that unlike Athens, representation and participation internationally is indirect.
Anghie, A. “Francisco De Vitoria and the Colonial Origins of International Law.” Social & Legal Studies 5.4 (1996): 321-36. Print.
Plato, Tom Griffith, and Jane O’Grady. “Crito.” Symposium and the Death of Socrates. Ware: Wordsworth, 1997. 115-32. Print.