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The Columbian Encounter
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Colonialism and Law
In this course, Dr Frederick Cowell (Birkbeck, University of London) explores colonialism and the law. In the first module, we introduce by discussing the Columbian encounter, and the creation of international law and legal doctrines. In the second module, we look at the drivers of international law. In the third module, we consider the effect of colonisation in India on international law, before turning to the scramble for Africa in the fourth module. In the fifth module, we finish by thinking about the end of the European empires and the legacy it left on the law.
The Columbian Encounter
In this module, we introduce the foundations of colonialism and international law, focusing in particular on (i) the Columbian encounter and european discovery (ii) the emergence of international legal doctrines (iii) Francisco de Vitoria and legal arguments (iv) Hugo Grotius and principles of the sea (v) the legacy of colonialism in international law.
Hello. I'm doctor Frederick Cowell.
00:00:05I'm a senior lecturer in law at Birkbeck College,
00:00:07the University of London.
00:00:10In this lecture, we're going to be looking at colonialism and the law,
00:00:12and we're going to be focusing first of all on what is called
00:00:16the Colombian encounter or European discovery in the
00:00:20fifteenth and sixteenth centuries
00:00:25in of the new world as they termed it and the
00:00:27creation of international law and how that led to
00:00:31international legal doctrines emerging.
00:00:35Till his dying day, Christopher Columbus thought that the new
00:00:39territory he had discovered, and called Hispaniola was part of India.
00:00:43It took later explorers from Spain and Portugal to establish
00:00:50that this was a completely new continent,
00:00:54which had for over seven millennia had no contact with
00:00:57Europe.
00:01:00It is also too complete controversial
00:01:02to say that Columbus discovered the new world.
00:01:06He didn't at all.
00:01:10He came across entire civilizations and peoples that
00:01:11have been living apart from Europe for many centuries.
00:01:15And as modern day scholars have
00:01:19identified, often quite brutally oppressed and suppressed them.
00:01:22Yet this was a site where major doctrines of international law were born.
00:01:28Understanding and classifying the new world as the Spanish
00:01:34termed it and as I'm going to term it in this lecture
00:01:38for for pedagogical and intellectual reasons,
00:01:43it's important to think of it like that because that helps us
00:01:46understand why these new doctrines were created.
00:01:50But in order to understand and manage this new world,
00:01:53it was important to clarify and develop existing
00:01:58elements of state practice that themselves became law.
00:02:04Unlike the formation of previous empires in history,
00:02:10the new Spanish and Portuguese empires that came into being in
00:02:13the fifteenth and sixteenth centuries
00:02:17were built across thousands and thousands of miles of ocean.
00:02:20In history previously,
00:02:26empires had generally been land based and expanded
00:02:27progressively across the land.
00:02:31By having an empire and territories that
00:02:34became part of or the new parts of,
00:02:38as they were sometimes called,
00:02:41the old world, countries,
00:02:44there was a need to develop new norms of how states would
00:02:48behave on the seas,
00:02:53and also to how the new communities they were
00:02:55discovering would be treated.
00:02:57The behavior of the Spaniards in the new world was a
00:02:59significant cause of concern for some.
00:03:02Bartholomew de la Casas, a Catholic priest and friar,
00:03:04had been living in Hispaniola,
00:03:08the colony on what is now the Dominican Republic,
00:03:10from fifteen o two, just ten years after Columbus's first voyage.
00:03:13Like many other Spaniards, he was content to earn a living
00:03:19on slavery and in particular the slavery of the indigenous
00:03:23population on Hispaniola.
00:03:27And it wasn't until the Spanish invasion of Cuba, which
00:03:30was later used as a staging post for Cortes'
00:03:35expedition against the Aztec empire,
00:03:38that he began to get disturbed about what he was seeing.
00:03:41He wrote, I saw here cruelty on a scale no living
00:03:45being has ever seen or expects to see.
00:03:50He began to lobby European governments about the brutal
00:03:53treatment of the indigenous communities in Central and
00:03:57South America and sought to outlaw the practice of seizing slaves.
00:04:00However, persuading the king of Spain to issue edicts to stop the
00:04:05enslavement of the indigenous community in the Americas,
00:04:10soon led to another form of reasoning.
00:04:13The slaves which the Spanish and the Portuguese had been
00:04:16buying from their African colonies since the fifteenth century,
00:04:19could just be transported across the Atlantic to supplant
00:04:24the need for native slave labor.
00:04:28So that at the end of the sixteenth century the tram
00:04:31lines of what would become the Atlantic slave trade had been born.
00:04:35Francisco de Vitoria,
00:04:39another Spanish theologian and philosopher,
00:04:41writing about the Americas later in the sixteenth century,
00:04:43advanced two novel legal arguments.
00:04:47First of all was that the indigenous communities themselves
00:04:50were as he put it in the language of the time heathen.
00:04:56Therefore they could be proselytized too.
00:05:00But they also too had certain forms of natural rights,
00:05:04meaning that they could not be killed
00:05:09or that they could not be enslaved.
00:05:12He also too developed and extended the idea of a just war.
00:05:17Now in European thought,
00:05:23the idea of a just war had been in existence for some time
00:05:24since the philosopher Thomas Aquinas had theorized the
00:05:28existence of just and unjust wars.
00:05:32But Vittoria extended this to the new world.
00:05:35Underpinning all of this was the concept of what Victoria
00:05:38called universalism.
00:05:42Scholars of international law later identified
00:05:44this as the start of universality,
00:05:48which would become important in international human rights law,
00:05:50in international humanitarian law,
00:05:54and in a number of other branches of international law.
00:05:56The idea that individuals everywhere have a certain core
00:05:59of interests that ought to be protected
00:06:03by virtue of them being human.
00:06:06But de Vittoria grounded his form of universalism
00:06:09in Christian theology.
00:06:13He was seeking to explain that the indigenous communities that
00:06:16the Spanish were, for want of a better word, discovering
00:06:20were Christian subjects in the making.
00:06:25They could be converted.
00:06:28This is where some international scholars see the
00:06:31development of a much,
00:06:35more problematic tendency in international law.
00:06:37The idea that international law can authorize
00:06:41the saving of individuals in need of help even if that
00:06:45be by force.
00:06:50For example, in, the Spanish conquest of the
00:06:52new world, the presence of religion was often the
00:06:56formal or claimed legal justification
00:07:01for starting wars with certain communities.
00:07:05The, when the Spanish does, came
00:07:09across the Inca Empire, the justification used for
00:07:13starting a brutal war with the Incas was that when the Spanish
00:07:18first encountered them and essentially tried to explain who they were,
00:07:22the Incas somehow disrespected the Bible and that authorized war.
00:07:27For some, this begins the tendency in international law
00:07:33to allow and justify the use of force where
00:07:38international law becomes a means of explaining
00:07:42the actions of power rather than defending the interests of the individual.
00:07:46Others have traced the origins of humanitarian intervention,
00:07:52the idea that some states can intervene militarily into
00:07:57another states to to stop human rights abuses,
00:08:00as happened in Kosovo in nineteen ninety nine,
00:08:03Sierra Leone in two thousand and one, and more controversially,
00:08:06was argued in relation to the two thousand and three invasion
00:08:11of Iraq war,
00:08:14as originating the idea that there existed a community that
00:08:16needed to be protected.
00:08:22But other areas of international law were also
00:08:24emerging at this point.
00:08:27Travelling across the sea required
00:08:28the need for a new kind of law.
00:08:32The sheer scale of crossing the Atlantic in a sailboat for
00:08:34three weeks at end with no communication,
00:08:38with the hazards of storms getting lost,
00:08:41getting stranded with man made hazards such as piracy,
00:08:44meant that there needed to be rules established about what
00:08:48the ocean was.
00:08:52A decree from the pope had granted the Americas,
00:08:54as they were understood in the fifteenth century,
00:08:58to the Spanish and Portuguese.
00:09:00And this gave them legal authority over the sea lanes
00:09:03across the Atlantic.
00:09:06However, by the sixteenth and seventeenth centuries the newly
00:09:08emerging Dutch and English,
00:09:13powers were increasingly competing and
00:09:17coming up against the Spanish and Portuguese,
00:09:20particularly over the routes to Africa,
00:09:24and also across the Atlantic.
00:09:28This led the Dutch lawyer Hugo Grotius in sixteen o
00:09:31nine in his book The Free Sea or Mare Librium
00:09:34to formulate new principles of the sea in relation to its navigability.
00:09:38The heart of Gracias'
00:09:44position was that states may not individually or
00:09:45collectively acquire entire high seas areas.
00:09:49The way of maintaining a territorial or colonial
00:09:53possessions to control the land.
00:09:57The seas belonged to mankind as a whole.
00:10:00Some scholars have argued that the legacy of this thinking was
00:10:04significant as it can be traced right the
00:10:08way today with the nineteen eighty two can UN convention on
00:10:11the law of the sea,
00:10:15which governs the world's oceans and seas and sets the
00:10:16limits of what can be called territorial waters.
00:10:20This thinking stems back to Grotius' thinking.
00:10:24The idea that the sea itself was there, to be free to
00:10:27navigate for all kinds of different purposes.
00:10:31What this was at the time meant was that it was a way
00:10:36of limiting conflict between imperial powers,
00:10:40or at least focusing it away from the process of
00:10:45crossing the seas, but also to to focus the idea
00:10:50of imperialism and the control of colonies
00:10:54to ports and the access to ports and in particular the
00:10:57levies that were charged on that.
00:11:01But also too, this control of the seas became a mechanism for
00:11:04excluding and controlling indigenous communities.
00:11:07As the Dutch and Portuguese empires fanned out across Asia,
00:11:11making individual outposts in countries that we now know,
00:11:15as, the
00:11:19India and, Indonesia, it became increasingly common for the
00:11:22control of the sea lanes to exclude certain communities
00:11:28from being able to use particular waters.
00:11:32Meaning that they ended up being cut out of the process
00:11:35of advancement that maybe was going on in a particular town
00:11:40or city that was controlled by the colonists,
00:11:44and leading to systems of law that years and
00:11:47centuries later were still constraining their rights.
00:11:51The Colombian encounter, as it was called, the voyage that
00:11:56Columbus took across the ocean in fourteen ninety two, was so significant.
00:12:01Not because, as he thought, that he was discovering
00:12:06something new, but because it created an entire process
00:12:11that required the developments of whole new doctrines of law itself.
00:12:18And these and the legacy of these still persist to this day.
00:12:24
Cite this Lecture
APA style
Cowell , F. (2024, July 10). Colonialism and Law - The Columbian Encounter [Video]. MASSOLIT. https://massolit.io/courses/colonialism-and-law/the-columbian-encounter
MLA style
Cowell , F. "Colonialism and Law – The Columbian Encounter." MASSOLIT, uploaded by MASSOLIT, 10 Jul 2024, https://massolit.io/courses/colonialism-and-law/the-columbian-encounter