Marks, Greg --- "Sovereign States vs Peoples: Indigenous Rights and the Origins of International Law" [2000] AUIndigLawRpr 14; (2000) 5(2) Australian Indigenous Law Reporter 1

Commentary

Sovereign States vs Peoples:

Indigenous Rights and the Origins of International Law

Greg Marks[1]

Indigenous rights, international law and Australia

The international dimension of the rights of the indigenous peoples of Australia was clearly recognised by former Prime Minister Gough Whitlam in 1972 when he said:

More than any foreign aid program, more than any international obligation which we meet or forfeit, more than any part we may play in any treaty or agreement or alliance, Australia’s treatment of her Aboriginal people will be the thing upon which the rest of the world will judge Australia and Australians.[2]

However, a degree of ambivalence can be seen in Australia regarding its international obligations in respect of indigenous peoples. This in part reflects the strong desire of settler societies such as Australia to avoid outside scrutiny, initially by the imperial authorities, and later by the international community. Indeed, the revolutions of Bolivar and San Martin in South America, and self-government in the Australian colonies, resulted in European settlers consolidating their power despite attempts by the former metropolitan powers to protect indigenous interests.[3] C D Rowley noted of the coming of self-government in Australia:

When, in the following year [1851], the settler majority in the legislatures assumed greater powers, policy substantially passed into local hands; and no indigenous people have been more completely at the mercy of typical settler democracies, where the standards of parliament are those of the settlers.[4]

This attempt to exclude the outside world from indigenous affairs continues to the present. Mick Dodson has noted that:

... when it comes to human rights scrutiny, this country takes full advantage of its geographic isolation. It hides away at the bottom of the South Pacific convinced and insisting that indigenous affairs are an entirely domestic matter and no one else’s business.[5]

However, Whitlam was correct in emphasising the international dimension of indigenous rights. No matter what appeals are made to national sovereignty and the principle of non-intervention in domestic affairs, the relationship between indigenous peoples and the independent states within which they live is essentially and fundamentally international in character. In fact, this international dimension to the rights of indigenous peoples can be traced back as far as the beginnings of European expansion into the New World in the 16th century.

A decision in March 1999 by the UN Committee on the Elimination of Racial Discrimination (CERD) in respect of Australia’s compliance with its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination (known as the Racial Discrimination Convention or ICERD)[6] demonstrates the reach of contemporary international human rights law in respect of indigenous peoples. The CERD expressed its concern over the compatibility of the Native Title Act 1993 (Cth), as currently amended, with Australia’s international obligations under the Racial Discrimination Convention, identified four specific provisions that discriminate against indigenous title holders, and, in particular, noted its concern about the lack of adequate consultation with indigenous communities regarding the 1998 amendments (the ‘Ten Point Plan’ amendments).[7] In this context, the Committee referred to its General Recommendation XXIII[8] which calls upon States Parties to:

recognise and protect the rights of indigenous people to own, develop, control and use their common lands, territories and resources

and which stresses the importance of ensuring:

that members of indigenous peoples have equal rights in respect of effective participation in public life, and that no decisions relating to their rights and interests are taken without their informed consent.[9]

The CERD Committee called upon the Australian Government to address its concerns as a matter of urgency and to re-open negotiations with representatives of the Aboriginal and Torres Strait Islander communities in order to find solutions in respect of the Native Title legislation ‘which would comply with Australia’s obligations under the Convention’.[10] The Federal Government’s hostile reaction to the recent CERD Committee decisions on Australia is symptomatic of the continuing reluctance of Australian governments to accept the implications of such international legal instruments for domestic law and policy.[11]

The CERD is by no means the only international instrument addressing, either directly or indirectly, the rights of indigenous peoples.[12] It can also be argued that the ILO Convention 169 Concerning Indigenous and Tribal Peoples and, to a degree, the UN Draft Declaration on the Rights of Indigenous Peoples, codify and develop norms of international customary law. Such customary international law standards in respect of indigenous peoples are binding on states regardless of whether they have ratified particular conventions and treaties. Australia is bound by customary international law as well as treaty law. As James Anaya has observed:

there is a substantial level of international concern for indigenous peoples, and with this concern there is a certain convergence of international opinion about the content of indigenous peoples’ rights. This convergence of opinion carries subjectivities of obligation and expectation attendant upon the rights, regardless of any treaty ratification or other formal act of assent to the norms articulated.[13]

International law as the law of nation states

Growing international concern about human rights generally and about indigenous rights in particular has been a notable feature of the post-1945 development of international law.[14] However, the origins of this concern lie much further back in time. It is in the 16th century controversy over colonisation in the earliest days of European expansion into the New World that international law itself had its beginnings. International law originated in the debate over what norms and principles should apply to the relationship between indigenous peoples and colonisers. It was only later that international law evolved into a system based on state sovereignty, exclusive jurisdiction, territorial integrity and non-intervention in domestic affairs. The state-centred system of international law came to deny that individuals, indigenous societies, and even those nations deemed not to be sufficiently ‘civilised’,[15] could be subjects of international law or have rights under such law.

But this is not how international law began. Over the centuries international law moved a long way from its origins. The nadir of international law was reached in the late 19th and early 20th centuries when, as Alexandrowicz has pointed out, it contracted

into a regional (purely European) legal system abandoning its centuries-old tradition of universality based on natural law doctrine ... International law shrank to regional dimensions, though it still carried the label of universality.[16]

The development of human rights law after 1945 (and the emerging concern about the situation of indigenous peoples) can be seen as international law returning to its original concerns, rather than as a new development. That the origins of international law lie in the 16th century discourse about the legal and moral relationship between the colonisers and indigenous peoples has been noted by a number of commentators. They describe a long tradition of recognition of the status and rights of indigenous peoples within international law. This tradition is seen by some to validate contemporary claims by indigenous peoples for international standing and protection. Others have argued that this recognition of indigenous rights was fundamentally ambiguous and flawed from the beginning and served to legitimise colonialism.

The positivist assumption that international law is no more and no less than the law of consenting sovereign states came to prominence in the late 19th and early 20th centuries. It is premised on the view that international law upholds the exclusive sovereignty of states and guards the exercise of that sovereignty from outside interference. Human rights law, as developed since World War II, despite admitting non-state players as subjects of international law, is nevertheless often viewed as an overlay on this positivist construction of the international order, rather than as a challenge to it. In this conception, human rights law, a modern phenomenon, arises either from increasing globalisation[17] or from the acceptance by nation states that human rights need international protection unless we are to degenerate into unspeakable atrocities and international chaos.[18]

But indigenous rights do not exist only at the whim of an international order that is constructed largely by sovereign nation states. Nor are they simply a subset of the post-war International Bill of Rights. Such views reflect an inadequate understanding of the origins of international law, and the continuing tradition of the international status of indigenous peoples in that body of law. British publicist M F Lindley, writing in the 1920s, noted that international law had a long history of recognising, in theory at least, the territorial rights of indigenous peoples:

... extending over some three and a half centuries, there had been a persistent preponderance of juristic opinion in favour of the proposition that lands in the possession of any backward peoples who are politically organized ought not to be regarded as if they belonged to no one.[19]

Lindley observed the derogation from such recognition of indigenous rights evident in the late 19th and early 20th centuries, as exemplified in the writings of publicists such as Westlake.[20] According to Lindley:

... especially in comparatively modern times, a different doctrine has been contended for ... a doctrine which denies that International Law recognizes any rights in primitive peoples to the territory they inhabit.[21]

A similar interpretation of the historical development of international law in respect of indigenous rights has been offered by Berman, who has noted that recognition of such rights was to be found within international law, at least prior to the 19th century:

Before the era of European colonialism in the 19th century, a legal order since repudiated by the international community, the rights of indigenous peoples were widely recognized. The writings of Vittoria, [sic] Grotius, Pufendorf, Vattel and others are replete with passages which describe indigenous societies as distinct political entities with territorial rights.[22]

A number of writers have commented on the re-emergence of indigenous rights in international law in recent times. Sanders[23] notes contemporary developments such as increased indigenous advocacy and the development of international legal standards. He notes that although indigenous rights were originally posited within international law, they had been progressively brought within the ambit of the domestic law of the successor states of the colonial empires during the 19th century.[24] For example, in the US, a limited international dimension to the position of the Native Americans had been recognised by the Supreme Court in the early 19th century, in Chief Justice Marshall’s doctrine of ‘Indians’ as ‘domestic dependent nations’ under the guardianship of the Federal Government.[25] However, even this acknowledgment of the international status of the Native Americans, limited and paternalistic as it was, was progressively eroded over time.[26] Note, however, recent developments towards recognition of tribal sovereignty.[27]

Sanders sees the roots of the modern resurgence of indigenous rights in the humanitarian movements of the 19th century, and in the persistent refusal by indigenous peoples to accept a ‘domestic’ status.[28] When he states that ‘indigenous questions have re-emerged as questions of international law and policy’,[29] Sanders is alluding to the same tradition of recognition of indigenous rights in international law identified by Lindley and Berman. Sanders traces this tradition back to the early 16th century contact between the Spaniards and the indigenous peoples of Latin America. In this perspective, the contemporary emergence of indigenous rights is not so much the progressive development of new law, but rather the restoration of existing rights previously acknowledged. Thus Doubleday, discussing Inuit hunting rights, argues that the dialogue between historical legal authorities (as evidenced in the work of Vitoria, Grotius and Pufendorf) and the progressive development of international law can provide a basis for developing indigenous rights fully at law:

Early publicists provide authority and theoretical roots. Existing international agreements provide materials for revision and inclusion. Processes like that of the Working Group on Indigenous Populations ... provide opportunities.[30]

Some writers contend that indigenous rights arise, in fact, outside of the positive law system of nation states altogether. Berman sees such rights as:

... preexisting rights in the sense that they are not developed from the legal system of surrounding states but arise sui generis from the historical condition of indigenous peoples as distinctive societies with the aspiration to survive as such.[31]

The advancement of indigenous claims is a challenge to the state-centred system of positive international law in two ways. Firstly, indigenous rights claims, like human rights claims generally, are often, although not necessarily, advanced in terms of some higher universal law or authority, some moral claim superior to the law created by the consent of sovereign states. In respect of a higher authoritative source challenging the discretion of the states, Gross refers to ‘the recent revival of natural law thinking in the field of international law’[32] which provides ‘a radical departure from the consensual view of international law’.[33] Natural law thought in general is characterised by belief in a system of right or justice common to all people and prescribed by the supreme controlling force in the universe.[34] It is distinct from positive law which is laid down by any particular state or other human organisation. In the 20th century, disillusionment with State power and positive law has seen a resurgence of interest in natural law. However, Gross considers that the positive law of the state-centred system of international law has continued to prevail, notwithstanding the revival of natural law thought.[35]

Kamenka, discussing the post-war development of human rights, alludes to its natural law undertones, even if such developments do not reflect the classic natural law formulations. As Kamenka observes:

The concept of human rights is no longer tied to belief in God or natural law in its classical sense. But it still seeks or claims a form of endorsement that transcends or pretends to transcend specific historical institutions and traditions, legal systems, governments, or national and even regional communities.[36]

Secondly, the ‘statism’ of the contemporary international legal order is challenged by positing that a different kind of collectivity, such as an indigenous people, enjoy international rights. Crawford has noted how even the most basic claims of indigenous peoples’, that is passive claims to be simply left alone to live their own lives inherently represent claims against the states in which they live. He comments that:

[t]he first thing to notice then is statism. Discussion of Aborigines takes place against the background of the division of the world into states or state areas, and the assumption that the primary human collective, above the family, is the state.[37]

This can be contrasted with the indigenous perspective of the place of indigenous peoples in international law. As Mick Dodson has observed:

As members of the world’s peoples, we [indigenous peoples] are the subjects of international law. We are entitled to be the full and equal beneficiaries of that law and make claims over our rights.[38]

The interest in the early international law publicists is not only one of legal history. There is an assumption amongst a number of commentators that these early texts remain coherent and valuable passages in the body of international law and that they bear on the present situation. While not all commentators view international law as being historically favourable to indigenous rights, a number of commentators assert that the early theorists validate the assertion that indigenous peoples have rights in international law.

‘The Spanish School’: recognition of indigenous rights in 16th century America

The discussion of indigenous rights in 16th century Spain is a particularly significant part of this process of validation. The Spanish theorists of the 16th century, who are collectively referred to as the ‘Spanish School’, considered the legitimacy of the Spanish presence in America and subjugation of the indigenous peoples. Most renowned was Vitoria, a distinguished professor of theology at the University of Salamanca between 1526 and 1546. The Spanish School may also be considered to have included Domingo de Soto, Francisco Suarez and Bartolome de Las Casas. Las Casas, in particular, was a noted defender of the rights of the ‘Indians’.

In a series of lectures, the Relectiones Theologicae, which were posthumously collected and published by his students,[39] Vitoria considered the legal issues of discovery, conquest, and settlement in the Americas. The Relectiones, particularly De Indis Noviter Inventis (On the Indians Recently Discovered) have had considerable influence on later international theorists through to the present day.

Las Casas was a Dominican cleric whose life and career were intimately bound up with America and the Indians. He was a vigorous Indianist for much of his life. Broadly speaking, the Indianist party in Spain supported the freedom of the Indians from subjection to the Spanish colonists. The Indianists supported the authority of the Crown in its endeavours to maintain control of the administration of the distant Spanish colonies, thereby hoping to provide protection to the Indians from the colonists’ depredations. They objected to cruel and inhumane treatment of the Indians, and denied that Indians were inferior to Europeans. The colonialist party, on the other hand, that is the colonists in America and their supporters in Spain, vigorously denied the equality of the Indians and the worth of their societies. They needed Indian land and Indian labour to directly control and exploit in order to acquire wealth through extraction and development of natural resources.

Las Casas saw native title as legally defensible against European claims, whether based on the authority of king or pope, unless the title was voluntarily relinquished. The so-called ‘Lascasian doctrine’[40] represents something of a high point in the assertion of indigenous rights in law, at least until the modern era of self-determination and decolonisation. Perhaps the best known incident in Las Casas’ career was the disputation with Juan Gines de Sepulveda at Valladolid, Spain, in 1550-1. Sepulveda was a leading humanist scholar, and a protagonist for the colonialist party. In 1531 he had published an interpretation of the popular Aristotelian doctrine of ‘slaves by nature’, distinguishing between those who are born masters and those born to be slaves, which purported to justify enslaving ‘inferior’ peoples.[41] In 1543 he explicitly applied this doctrine as a justification for the Spanish wars of conquest and enslavement of the Indians.[42] Sepulveda was one of the leading apologists in Spain for colonialism by force of arms, and the deprivation of Indian liberty by the colonialists. The Valladolid disputation was convened by King Charles V and the Council of the Indies in an attempt to resolve the continuing contention in Spain over the morality and legality of the wars of conquest against the Indians. The issues were debated by Las Casas and Sepulveda before a Council of 14 eminent jurists and theologians.

The Valladolid disputation is the archetypal 16th century discussion of the law and morality of colonialism. Las Casas’ arguments, which he titled In Defence of the Indians,[43] provide a detailed rebuttal of the ideological basis for Spanish colonialism which had been used as a justification for the subjugation of the Indians. The legal frame of reference in modern law is different, and does not conflate law and morality with the unselfconscious ease evident in the Defence. However, there is still much of contemporary relevance in Las Casas’ analysis of the colonial relationship. Las Casas identified the accusation of barbarism levelled against the Indians as the fundamental racial basis for the injustices of colonialism. Las Casas was well aware of the psychological mechanisms, in terms of self-justification, and of the political implications, in terms of loss of sovereignty, at work in the assertions of racial and cultural superiority by the colonialists.

To date, Las Casas’ influence on the question of indigenous rights in international law has been marginal, at least in the English speaking world. And yet his wide view of indigenous rights, encompassing economic and cultural considerations which impinge on issues of jurisdiction and sovereignty, still has relevance to the claims advanced by indigenous peoples today. The work of Las Casas has the potential to more clearly define the basic issues and principles involved in establishing the status of indigenous peoples. It also provides powerful and coherent arguments for the essential equality of all mankind, and building on that equality the right to justice and self-government.

Conclusion

The main proponent of the view that modern international law originates in the work of the 16th century Spaniards is J B Scott. Scott argues that:

... the discovery of America gave rise to a modern law of nations ... The Spanish School came into being and passed out within the course of a century, but it has to its credit the modern law of nations.[44]

Other writers have noted the importance of the Spanish School as, if not founding modern international law, at least representing a significant development. Brierly observes, in respect of Vitoria’s treatment of the relationship between Spain and the Indians, a step towards universalising international law:

In this Vitoria’s teaching marks an important step in the expansion of international law into a world system; for it meant that a law which had its rise among the few princes of Christendom was not to be limited to their relations with one another but was universally valid, founded as it was on a natural law applying equally to all men everywhere.[45]

While a number of writers assume that the Spanish School represents a strong and consistent advocacy of Indian rights, other writers have noted ambivalence within the texts, even to the extent of finding theoretical support for colonialism in them. This is especially so in respect of Francisco de Vitoria.[46]

It is not the intention here to consider the argument about the legacy of Vitoria and the Spanish School, which has been carried on by a number of commentators. A balanced view is given by James Anaya when he notes:

What we now call international law can be traced back to the natural law philosophies of Renaissance European theorists, which were in some measure, although not entirely, sympathetic to indigenous peoples’ existence as self-determining communities in the face of imperial onslaught.[47]

The common origins of international law and indigenous rights have important implications. They explain some of the contradictions and tensions within the practice of international law today. They provide a fuller understanding of the nature of international law and lead us away from the simplistic positivist conception of international law as a self-serving arrangement between established states in a Euro-centric world order. They are a reminder of the natural law inheritance of international law.

While the legacy of the 16th century jurists may, to some extent, be problematic for claims of indigenous equality and international status, especially in the work of Vitoria, at the same time the assertion of the international status and the consequent rights of indigenous peoples contained in these early doctrines confirms, justifies and supports the claims of indigenous peoples today. These 16th century writers grappled with fundamental questions of the law of nations and the rights of indigenous people within that law. The issues are not so different today. As Anaya has observed:

... just as international law once moved away from natural law thinking that was to some extent supportive of indigenous peoples’ survival as distinct autonomous communities, international law is again shifting. But this time the shift is in retreat from the orientation that would divorce law and morality, and deny international rights to all but states, or that would regard non-Westernized peoples as necessarily inferior ... this latest shift, although fraught with tension, carries a reformed body of international law concerning indigenous peoples.[48]

The future of indigenous affairs in Australia must be understood within the context of a system of international law and its consequent rights and obligations in which indigenous societies are once again tentatively and with many contradictions being accorded a place within the international community. It would be far more sensible to recognise this fact, and to seek a domestic reconciliation which accords with international standards and principles, which themselves stretch back to the origins of international law, than to adhere to an exclusive view of state sovereignty which fails to acknowledge the international dimension of indigenous rights.

[1] Greg Marks is a writer and consultant on international human rights law, in particular indigenous rights.

[2] Whitlam E G, ‘Australia’s International Obligations’ in Nettheim G, Human Rights for Aboriginal People in the 80s Legal Books, Sydney 1983, p 11.

[3] See Reynolds H, The Law of the Land Penguin, Ringwood Victoria 1992 ch VI ‘Land Rights Recognised, 1838-48’.

[4] Rowley C D, The Destruction of Aboriginal Society Penguin, Sydney 1974, pp 23-24.

[5] Dodson M, ‘Linking International Standards with Contemporary Concerns of Aboriginal and Torres Strait Islander Peoples’ in Pritchard S (ed), Indigenous Peoples, the United Nations and Human Rights The Federation Press, Sydney 1998 p 19.

[6] UN Doc CERD/C/54/Misc40/Rev2 (1999).

[7] CERD reaffirmed its decision in August 1999 and again in March 2000. See UN Doc CERD/C/56/Misc42/Rev3 (Concluding Observations/Comments). The Concluding Observations by CERD in March 2000 were rejected strenuously by the Australian Government — see News Release of 26 March 2000 by the Attorney-General, Daryl Williams, ‘CERD Report Unbalanced’.

[8] UN Doc CERD/C/51/Misc13/Rev4 (1997) para 5.

[9] Above note 8 at para 4.d.

[10] Above note 6 at para 11.

[11] For example see news release of 19 March 1999 by the Attorney-General, Daryl Williams, ‘United Nations Committee Misunderstands and Misrepresents Australia’.

[12] Also of relevance are the Universal Declaration of Human Rights of 1948, the International Covenant on Civil and Political Rights 1966 (ICCPR) — in particular art 27 concerning the rights of members of minorities, the International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR), the Convention on Biological Diversity, and the International Labour Convention No 169 Concerning Indigenous and Tribal Peoples in Independent Countries 1989. As well, the UN is developing a Draft Declaration on the Rights of Indigenous Peoples.

[13] Anaya S J, Indigenous Peoples in International Law Oxford University Press, New York 1996 p 55.

[14] Bailey P, Human Rights — Australia in an International Context Butterworths, Sydney 1990 has referred to ‘the astonishing emergence, led and epitomised by the Universal Declaration of Human Rights in 1948, of a comprehensive international movement for the promotion and observance of human rights’ p 276. See also Pritchard S and Heindow-Dolman C, ‘Recent International Normative Developments and Indigenous Peoples: A Critical Assessment’ (1998) 3(4) AILR 473 at 473.

[15] See for example Oppenheim F L, International Law (3rd ed by R F Roxburgh) Longmans, London and New York 1920.

[16] Alexandrowicz C H, An Introduction to the History of the Law of Nations Clarendon Press, Oxford 1967 p 2.

[17] Pritchard S and Heindow-Dolman C, above note 14, at 473.

[18] Robertson G, Crimes Against Humanity — The Struggle for Global Justice Allen Lane The Penguin Press, London 1999 p xiv.

[19] Lindley M F, The Acquisition and Government of Backward Territory in International Law Longmans, London and New York 1926 p 20.

[20] Oppenheim P (ed), The Collected Papers of John Westlake on International Law 1914, cited in Lindley, above note 19, p 18.

[21] Lindley above note 19, p 20.

[22] Berman H R, ‘Panel discussion: are indigenous populations entitled to international juridical personality’ (1985) 79 American Society of International Law Proceedings 189 at 190.

[23] Sanders D, ‘The re-emergence of indigenous questions in international law’ (1983) 3 Canadian Human Rights Yearbook 12-30.

[24] See text at n 3 above.

[25] Cherokee Nation v Georgia 30 US [1831] USSC 6; (5 Pet) 1 (1831).

[26] Barsh R, ‘Behind land claims: rationalising dispossession in Anglo-American law’ (1986) I Law and Anthropology 15 at pp 27-28 notes:

Under the nineteenth century decisions, the United States merely enjoyed a kind of international legal protectorate over unsurrendered native territories, with an exclusive right to accept cessions. By the 1950s however, this protectorate had evolved into an absolute sovereignty with power of disposal for any reason at all, and without any obligation to compensate for the taking unless the Indian interest had been brought within the American land tenure system.

27 In 1994 President Clinton issued a Government Directive to federal departments and agencies requiring them to deal directly with tribal governments — see Clinton W J, ‘Remarks to American Indian and Alaska Native Tribal Leaders 29 April 1994’, 30 Weekly Compilation of Presidential Documents no18, 942 (9 May 1994).

[28] Sanders, above note 23 at 13.

[29] Sanders, above note 23 at 30.

[30] Doubleday W C, ‘Aboriginal subsistence whaling: the right of Inuit to hunt whales and implications for international environment law’ (1983) 17(2) Denver Journal of International Law and Policy 373 at 384.

[31] Berman, above note 22 at 190.

[32] Gross L, ‘The Peace of Westphalia, 1648-1948’ (1948) 42 American Journal of International Law 20 at 39.

[33] As above.

[34] The history of natural law thought is outlined in Walker D M, The Oxford Companion to Law Clarendon Press, Oxford 1980,

pp 868-871.

[35] Gross L, above note 32 at 40-41.

[36] Kamenka E, ‘Human rights, peoples rights’ in Crawford J (ed), The Rights of Peoples Clarendon Press, Oxford 1988 p 128.

[37] Crawford J, ‘The Aborigine in comparative law’ (1987) 2 Law and Anthropology 5 at 14.

[38] Above note 37 at 19.

[39] Vitoria F, De Indis et de Jure Belli Relectiones (1557) reprinted in Scott J B (ed), Classics of International Law Clarendon Press, Oxford 1964.

[40] See Marks G, ‘Indigenous peoples in international law: the significance of Francisco de Vitoria and Bartolome de las Casas’ [1991] AUYrBkIntLaw 1; (1992) 13 Australian Year Book of International Law 1; Morris G T, ‘In support of the right of self-determination for indigenous peoples under international law’ (1986) 29 German Year Book of International Law 277 at 284-88; Todorov T, The Conquest of America Harper Perennial, New York 1992.

[41] de Sepulveda J G, Democrates (1531) in Hanke L, All Mankind is One —A study of the Disputation between Bartolome de Las Casas and Juan Gines de Sepulveda in 1550 on the Intellectual and Religious Capacity of the American Indians Northern Illinois, University Press de Kalb 1974.

[42] de Sepulveda J G, Democrates Alter or Secundus (1543) in Hanke L, above note 41.

[43] de Las Casas B, The Defence of the Most Reverend Lord, Don Fray Bartolome de Las Casas, of the Order of Preachers, Late Bishop of Chiapas, Against the Persecutors and Slanderers of the Peoples of the New World Discovered Across the Seas circa 1552 — unpublished Latin manuscript Poole S (trans and ed) Northern Illinois University Press, de Kalb 1974.

[44] Scott J B, The Spanish Origins of International Law 1932 p IX.

[45] Brierly J L, The Law of Nations (6th ed) Clarendon Press, Oxford 1963.

[46] Fitzpatrick P, ‘Terminal legality: imperialism and the (de)composition of legal culture’ paper presented to the 1998 18th

Annual Conference of the Australia and New Zealand Law and History Society, noted that:

There could hardly be two more divergent views of the primal text of international law than those which have come to accompany Vitoria’s De Indis. In one view, Vitoria is seen as getting international law off to an aptly exalted start in the early sixteenth century with his universalist, humanitarian espousal of the interests of the Indian during Spanish colonization of the Americas. With the other view, Vitoria certainly did bequeath the enduring lineaments of international law, but he did so by way of providing a refined framework and justification for colonial oppression.

See also Anghie A, ‘Francisco de Vitoria and the colonial origins of international law’ in Darian-Smith E and Fitzpatrick P (eds), Laws of the Postcolonial University of Michigan Press, Ann Arbor 1998; Pagden A, European Encounters with the New World: From Renaissance to Romanticism Yale University Press, New Haven 1993.

[47] Anaya J, above note 13 at 9-10.

[48] Anaya J, above note 13 at 26.