The Origins of International Law
When Isabel learned that Indians of the newly discovered Americas were being enslaved, she commanded their sale to be suspended immediately and named a committee of jurists and theologians to resolve decisively whether the Indians should be subjected to slavery. The committee declared the Indians had the right to be free. When more enslaved Indians began appearing on Andalusian markets Isabel ordered their unconditional release and indignantly admonished Columbus, “Who gave you the authority to make slaves of my subjects?”
Close advisors to the queen like Cardinal Cisneros also fought for the rights of the Indians, as did a group of professors of the University of Salamanca, including the renowned theologian Melchor Cano. Across the Atlantic, in December 1511 a Dominican friar named Antonio de Montesinos shook the authorities in Hispaniola in a sermon on their treatment of the natives, “Why do you keep them so oppressed and weary, not giving them enough to eat nor taking care of them in their illness? For with the excessive work you demand of them they fall ill and die, or rather you kill them with your desire to extract and acquire gold every day. And what care do you take that they should be instructed in religion?...Are these not men? Have they not rational souls? Are you not bound to love them as you love yourselves?”
Antonio and his superior, slandered in Spain, travelled there to present their case to King Ferdinand. Faced with dramatic testimony from the New World, King Ferdinand instructed the chief crown jurist, Palacios Rubio, to examine the rights of Spaniards in the Indies. Rubio concluded the Indians were free by natural law and therefore the Spaniards did not have the right to take their freedom or properties.
Fr Francisco Vitoria, a Dominican who lectured at the College of St Gregory in Valladolid, is today considered the founding father of modern international law. Vitoria published in 1532 his famous treatise De Indis in which he “established the right of the Indians to their territories and laws and denied to the Spaniards any right to be in the Indies at all, other than that of every man to peacefully go and trade everywhere and the duty of every Christian to convert the heathen.” This document would have transcendental repercussions not only in America but throughout the whole of European jurisprudence. With his fellow theological jurists, Vitoria “defended the doctrine that all men are equally free; on the basis of natural liberty, they proclaimed their right to life, to culture and to property.” In support of his assertions Vitoria drew from both Scripture and reason.
Later two great bishops of New Spain (Mexico), Juan de Zumárraga and Julián Garcés, sent the Dominican friar Bernardino de Minaya to Rome so that he could intercede with the Pope for the cause of freedom for the Indians. These activities resulted in the famous bull Sublimis Deus, published in 1537, by Pope Paul III, in which the Pontiff condemned all those who asserted the Indians were bereft of the intelligence necessary to embrace the faith. The Pope also solemnly declared that “the said Indians and all other people who may later be discovered by Christians are by no means to be deprived of their liberty or the possession of their property, even though they be outside the faith of Jesus Christ.”
Spain showed the world a humanistic vision unrivalled at that time. “...The clash of arms was not the only struggle during the conquest. In the clash of ideas that accompanied the discovery of America and the establishment of Spanish rule there is a story that must be told as an integral part of the conquest...” The legal foundation for this humanistic vision was laid by the Servant of God Queen Isabel the Catholic. The vitality of her own interior life inflamed her conviction to defend the inalienable and God-given dignity of others.