This world is a diverse place, not necessarily in terms of people, as our DNA and our genetic make-up are actually quite similar, but the diversity lies in the imagination of human beings.
Unlike the laws of physics, or thermodynamics; the existence of societal laws, justice, human rights, and even questions of race, lies in our collective imagination.
The “collective imagination” of international rules, laws, and structures defines the modern “world system”. The “creation” of “nation-states”, initially predominantly in Europe, slowly emerged as the dominant system of local rule.
The overall phenomenon of the modern world-system is a comparatively new construct, which found meaning first with the creation of “nation-states” that gave shape to “internal” vs “external” relations, that in turn gave shape to identities, to governing entities.
But the ideological and legitimation tools of the modern world-system can be contradictory. The world-economy is not a bureaucratic empire, but rather an inter-state system composed of sovereign states.
The world-system needs to accommodate those that set the rules and those that don’t. Indigenous peoples, comprising 5% of the world’s population, look after 80% of the remaining biodiversity of this planet. However, the rights of indigenous peoples and the biodiversity they protect remain under threat from the current world system.
On 7 June 1494, less than two years after the Venetian pilot, Christopher Columbus, “discovered” the Americas, King Ferdinand II of Aragon and Queen Isabella I of Castile, and King John II of Portugal concluded the Treaty of Tordesillas.
The treaty of Tordesillas established a demarcation line between the two European nation-state alliances, running from pole to pole around the globe, set at 370 leagues west of the Cape Verde Islands.
The negotiation and agreement were in response to the Papal Bull of Pope Alexander VI, Roderix Llançol i de Borja (or Borgia) originally from Aragon, that “confirmed” the rights of the Crown of Aragon in the New World and drew an imaginary north-south line 100 leagues west of the Azores islands.
It is now disputed that the Inter Caetera Bull of 4 May 1493 intended for the Christian empire (imperii Christiani) to hold the “barbare nationes” (barbaric nations) in subjection (“subjicere”) in perpetuity.
But the outcome is clear. The treaty unilaterally divided the planet into two spheres of interest and “gave” exclusive rights for these two alliances over the peoples living under its remit. The rights of indigenous peoples were ignored.
Infringing the Rights of Indigenous Peoples
In 1503, the Spanish Crown introduced the encomienda system, by which the Spanish settlers (new land owners) would be allowed an assignment (a people grant) of indigenous people to work on his land.
Typically, an encomienda (people grant) included an entire village, up to several hundred men, women, and children.
While there were some requirements for teaching indigenous people to read and write (and an obligation from 1509 to instruct them in the Holy Catholic faith).
Apart from a small tax due to the crown, the conquerors were entitled to all the fruits of the labour of that indigenous person, and even his son or daughter (a “deposit” that would last for two lives).
This cheap labour allowed for a much larger land conquest than would have been possible without the encomienda system.
The rights of indigenous peoples were not considered worthy of discussion. The key challenge was that indigenous property was collectively owned.
Defenders of the rights of indigenous peoples
In 1539, Francisco de Vitoria, a Dominican priest and an authority on legal affairs, who lectured at the University of Salamanca from 1526, wrote two lectures entitled “On the American Indians” (De indis) and “On the Law of War” (De indis relectio posterior, sive de iure belli).
De Vitoria confirmed the rights of indigenous peoples and wrote that they were the true owners of the lands. They had the right to own property…. within limits.
At the same time, de Vitoria repudiated religious (holy) wars and asserted the law of nations.
At brief moments in time, there were other individuals that protested against the atrocities committed by colonizers against indigenous people.
People like Bartolomé de las Casas agitated on behalf of the rights of indigenous peoples (even to King Charles I of Spain in 1515) and influenced Pope Paul III to issue the “Sublimis Deus”, a public decree of 1537, which briefly forbade the enslavement of indigenous people in the Americas.
The decree confirmed unchristian indigenous people as rational humans who had rights to freedom and private property… but it didn’t last long… the decree was nullified that same year… and never implemented in the New Worlds.
In 1542, Las Casas influenced the passing of the “New Laws of the Indies for the Good Treatment and Preservation of the Indians” (the New Laws). These laws were created to support the rights of indigenous peoples and prevent the mistreatment and exploitation of indigenous people in the labour system.
But Las Casas was forced to return to Spain because of resistance to the “New Laws” by the Spanish conquerors. Even in Spain, the issue was not settled.
Juan Ginés de Sepúlveda, who had never been to the Americas, was the key supporter of the opposing view.
Sepúlveda wrote several books justifying the human rights abuses in the wars of King Charles V (of Spain) in Europe and wrote: “Of the Just Causes of War against Indians”. He included “saving the innocents” as a just cause.
In 1550, King Charles V suspended all the conquering activities in America and asked Las Casas and Sepúlveda to debate the rights of indigenous peoples in from of a jury of countrymen.
Sepúlveda argued against the New Laws and posited that indigenous people were less than human, and required “civilized” masters to become civilized. Las Casas postulated that indigenous people were fully human and that forcefully subjugating them was unjustifiable.
Las Casas also claimed the King and the Pope had no jurisdiction over indigenous people because indigenous people were not Christians.
In his argument, Las Casas stated that authority is transferred only (1) via location (if indigenous people lived among “Christians”), (2) by reason of origin, or (3) if a person is a vassal and has taken an oath of fidelity, and (4) when a crime is committed in someone’s jurisdiction, either against the ruler himself or against the property or persons who are his subjects.
“I should have wished then that no one within the State should be able to say he was above the law; and that no one without should be able to dictate so that the State should be obliged to recognise his authority.”
(Discourse on Inequality) – Jean Jacques Rousseau
The debate highlights the problems of black and white categorizations of the world, and the negative consequences of linking humanitarian ends to approve of a “just” war.
Las Casas emphasized the point that the term barbarism does not apply to a group of people who follow a particularly offensive set of beliefs but has to refer to individuals…. and went on to define a “just” war in terms of injury, thereby constraining the use of war as a political and moral tool.
Las Casas concludes that saving the innocent and paving the way for a specific moral outcome are admirable ends, but not just causes to wage war. For Las Casas, even the death of a few to save the many does not justify the widespread and long-term evils of war.
Impact of the Debate
No details of the deliberations or decisions by the jury around the Valladolid debates survive, but the outcomes are clear to see.
While De Vitoria accepted the rights of indigenous peoples to their lands, he at the same time spoke of a reciprocal “law of nations”, that “forces an agreement among men and creates the force of law for the world as a whole”.
Any transgressions to that “law of nations” by indigenous people could serve to justify Spanish conquest and control. If indigenous people did not obey the basic duties, the conquerors had the right to declare a “just” war on them.
Las Casas offers an alternative framework of “just wars” that focused on injury and warns against including humanitarian benefits in the just cause criterion.
The encomienda system was formally abolished in the 18th century… but only because cheaper, stronger labour (slaves) were imported from Africa… elsewhere the rights of indigenous peoples would face stern tests… and lose.
Jurisdiction and Sovereignty
The rights of indigenous peoples and demands for land and political sovereignty, collective autonomy and control over energy, technology and food production, remain clouded by concepts (and norms) formed hundreds of years ago.
The Treaties of Westphalia (1648), gave shape to a western ideological interpretation of sovereignty, international law, and “internal” vs “external” relations, largely based on the Justinian Code (Roman Law).
This “new” world order, emerged from one ruled by religious authority.
Sovereign states (within distinct geographically separate territories) exercised jurisdiction and self-determination over specific territories and were respected if they had the power to “dominate” and “influence” geopolitically, to enforce their legal rights outside of their own territory (extraterritoriality).
Before Westphalia, intellectuals like Huig de Groot (Grotius – 1625) argued that collectively owned land can only become subject to private ownership “by a kind of agreement, either expressed, as by a division or implied, as by occupation”.
Even in Europe, most lands were then collectively owned… and decisions about the land were collectively taken… but that would rapidly change.
After Westphalia, intellectuals, like John Locke, argued that private property could be transferred without the consent of others, as long as individuals (and their slaves, of course) “mixed their labour” with the property “removing it from the common state nature hath placed it in“.
Once jurisdiction was confirmed, in many cases unilaterally, but often through consent by fellow imperialist states, the rights of indigenous peoples
Of course, in international law, courts recognised an open-ended legislative power for the Crown in colonial protectorates, uncontrolled by broader common law principles.
Colonialists held that conquered lands were “inhabited only by a few people leaving little impression on the landscape” and that individual property rights were transferred merely by transaction costs.
Imperial expansion across the rest of the Americas and Africa, and later Asia, was facilitated by treaties that included a requirement to “swear” an oath of fidelity… and where these oaths were not suitably forthcoming, by swiftly followed allegations of “crimes against humanity”…
Crimes against humanity became the rallying cry to justify wars against indigenous people… The leading world powers would succeed in making their ideas and positions prevail to suit their own interests.
Over the six hundred years from the signing of the Treaty of Tordesillas, the imperial military conquest of the Americas, Africa, and Asia continued unchecked and unpunished.
While some championed their cause, as confirmed in the Vallodalid debates, outcomes have universally confirmed that common law interpretations of property ownership were selectively applied to suit the powerful.
Indigenous peoples were outside of this system and had no say in its operation and no recourse to any other powerful actors within the world system. Indigenous people were deprived of their freedom and their property.
Even today, can anyone be bold enough to define a set of universal norms that function across all people? Are those norms representative of the majority, or even fully understood by people natively speaking more than 7,200 languages globally, never mind within the larger language groups?
Are these universal norms more than just a product of the unequal hierarchies of the modern world-system, and is it serving everyone, or just sustaining those that have power?
How do we create a system that protects the rights of indigenous peoples?