FNST429/Crim429

Indigenous Peoples and

International Law:
Grotius, Hobbes, de Vattel

1500s/1600s
Shift in legal/theological discourse
Rejection of Papal claims to secular
jurisdiction; and
Application of natural law principles to all
human relationships, including relations
bet een nations
between
Transition from pope-defined natural law to a
more secular definition

Franciscus de Vitoria
1 Indians have natural
1.
legal rights as free
and rational people
2. Pope has no
jurisdiction to give
Spain title to New
World
3. But benign
guardianship is OK

Hugo Grotius
Dutch
Seas are international
territory that no one
can own (1609)
One cannot claim title
by discovery
discovery when
there are people there,
no matter what their
beliefs or behaviour

Hugo Grotius

Neither can the wickedness, and impiety,

p y nor anyy other incapacity
p y of the
original owner justify such a claim. For the title and right by discovery can
apply only to countries and places, that have no owner. [Book 2 at IX]

Neither moral nor religious virtue, nor any intellectual excellence is requisite
to form a good title to property. Only where a race of men is so destitute of
reason as to be incapable of exercising any act of ownership, they can hold no
property, nor will the law of charity require that they should have more than
the necessaries of life. For the rules of the law of nations can onlyy be applied
pp
to those, who are capable of political or commercial intercourse: but not to a
people entirely destitute of reason, though it is a matter of just doubt, whether
any such is to be found. [Book 2 at X].

Hugo Grotius
Capacity to enter
treaties is a right of all
peoples
Three justifiable
causes for war
Defence
Recovery of property
Punishment

Era of treaties, wars

Treaty of Westphalia 1648

Treaty between
Catholic Church and
new nation states
Ends wars of religion
New alliances would
be diplomatic/political
instead of religious

Treaty of Westphalia 1648

Treaty of Westphalia
Natural
Natural law
law shifts from universal
universal moral
code to a bifurcated regime comprised of
the natural rights of individuals and the
natural rights of states
But who would define this natural law?
Well states, of course, because the state
is the pinnacle of civilized achievement

Thomas Hobbes
Leviathan (1651)
There is
Chaos where life is
nasty, brutish and
short vs
Nation state where
people can live in
harmony, peace and
justice

Thomas Hobbes
Herebyy it is manifest
f that duringg the time men live without a common
power to keep them all in awe, they are in that condition which is
called war; and such a war as is of every man against every man.

In such condition there is no place for industry, because the fruit

thereof is uncertain: and consequently no culture of the earth; no
navigation, nor use of the commodities that may be imported by sea;
g no instruments off movingg and removingg such
no commodious building;
things as require much force; no knowledge of the face of the earth; no
account of time; no arts; no letters; no society; and which is worst of
all, continual fear, and danger of violent death; and the life of man,
solitary, poor, nasty, brutish, and short.

Delgamuukw v BC, 1991

It is common,, when one thinks of Indian land claims,, to think of
Indians living off the land in pristine wilderness. Such would not be an
accurate representation of the present life-style of the great majority of
the Gitksan and Wet'suwet'en people who, while possibly maintaining
minimal contact with individual territories, have largely moved into
the villages. Many of the few who still trap are usually able to drive to
their traplines, and return home each night.
Similarly, it would not be accurate to assume that even precontact existence in the territory was in the least bit idyllic. The
plaintiffs' ancestors had no written language, no horses or wheeled
vehicles, slavery and starvation was not uncommon, wars with
neighbouring peoples were common, and there is no doubt, to quote
Hobbs, that aboriginal life in the territory was, at best, nasty, brutish
and short.

Thomas Hobbes
The nation state is
Centralized
Hierarchical
Power rests in one
person who holds the
trust of the nation
Sedentary
Cultivation of soil and
development of Gods
gifts

Thomas Hobbes
Dichotomies
Nation state and the
individual and nothing
in between
Those who live in
nature versus those
who
h are civilized
i ili d

Indigenous modes of
governance dont
count

Emmerich de Vattel
The Law of Nations
Nations,
or the Principles of
Natural Law (1758)
the science of the
rights which exist
between Nations or
States,
and
S
d off the
h
obligations
corresponding to these
rights.

Chapter I
Of Nations or Sovereign States
Very Hobbesian in terms of emphasis on the social
contract and hierarchical vision:
1. A nation or a state is a body politic, or a society of men
united together for the purpose of promoting their mutual safety
and advantage by their combined strength.
it is necessary that there should be established a public
authority, to order and direct what is to be done by each in relation
to the end of the association. This political authority is the
sovereignty; and he or they who are invested with it are the
sovereign.

Chapter I
Of Nations or Sovereign States
Associations with others are okay as long as one retains a
governance function:
4. Every nation that governs itself, under what form soever,
without dependence on any foreign power, is a sovereign state. Its
rights are naturally the same as those of any other state.
5. The conditions of those unequal alliances may be infinitely
varied.
i d But
B t whatever
h t
they
th are, provided
id d the
th inferior
i f i ally
ll reserve to
t
itself the sovereignty, or the right of governing its own body, it
ought to be considered as an independent state, that keeps up an
intercourse with others under the authority of the law of nations.

Chapter I
Of Nations or Sovereign States
Considers various forms of unequal association:

By treaties of protection
Tributary states
Feudatory states
Two states subject to the same prince
St t forming
States
f
i a federal
f d l republic
bli
Of a state that has passed under the dominion of
another

Chapter I
Of Nations or Sovereign States
The worry is passing
passing under the dominion of
another. Begs the question of when a nation
moves in an unequal situation from having an
agreement (or treaty) to losing its statehood
11.
Of a state that has ppassed under the dominion of
another. But a people that has passed under the
dominion of another is no longer a state, and can no
longer avail itself directly of the law of nations.

Chapter VII
Of the Cultivation of the Soil
Note how cultivation of the soil becomes an obligation; use
it or lose it
78. Regulations necessary in this respectThis object then
deserves the utmost attention of the government. The sovereign
ought to neglect no means of rendering the land under his
jurisdiction as well cultivated as possible. He ought not to allow
either communities or private persons to acquire large tracts of
land, and leave them uncultivated.

contd

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Chapter VII
Of the Cultivation of the Soil
Very Hobbesian vision again: order vs chaos,
chaos and of
course order cultivation, efficiency, capital benefits are
all to be encouraged.
Those rights of common, which deprive the proprietor of the free
liberty of disposing of his land,which will not allow him to
inclose and cultivate it in the most advantageous manner, those
rights,
i ht I say, are inimical
i i i l to
t the
th welfare
lf off the
th state,
t t andd ought
ht to
t
be suppressed, or reduced to just bounds. Notwithstanding the
introduction of private property among the citizens, the nation has
still a right to take the most effectual measures to cause the
aggregate soil of the country to produce the greatest and most
advantageous revenue possible.

Chapter VII
Of the Cultivation of the Soil
Not looking good for Indigenous peoples; we are obliged
obliged
by the laws of nature to cultivate the land. Those who
dont are not living up to their responsibilities:
81. The cultivation of the soil, a natural obligation. ... The whole
earth is destined to feed its inhabitants; but this it would be
incapable of doing, if it were uncultivated. Every nation is then
obliged by the law of nature to cultivate the land that has fallen to
its share; and it has no right to enlarge its boundaries,
boundaries or have
recourse to the assistance of other nations, but in proportion as the
land in its possession is incapable of furnishing it with necessaries.
Those nations who inhabit fertile countries, but disdain to
cultivate their lands are injurious to all their neighbours, and
deserve to be extirpated as savage and pernicious beasts. (contd)

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Chapter VII
Of the Cultivation of the Soil
Hunting and fishing may have been okay when there were
fewer people, but we can no longer afford to pursue this
idle life and shouldnt be surprised when others move in:
There are others, who, to avoid labour, chuse to live only by
hunting, and their flocks. This might, doubtless, be allowed in the
first ages of the world, when the earth, without cultivation,
produced more than was sufficient to feed its small number of
inhabitants But at present
inhabitants.
present, when the human race is so greatly
multiplied, it could not subsist if all nations were disposed to live
in that manner. Those who still pursue this idle mode of life, usurp
more extensive territories than they would have occasion for,
and have therefore no reason to complain, if other nations, more
industrious, and too closely confined, come to take possession of a
part of those lands. (contd)

Chapter VII
Of the Cultivation of the Soil
Clearly de Vattel had never been to Peru or Mexico.
Mexico
Nonetheless, he suggests the conquest may have been
lawful because of how much land was not cultivated:
Thus, though the conquest of the civilised empires of Peru and
Mexico was a notorious usurpation, the establishment of many
colonies on the continent of North America might, on their
confining
fi i th
themselves
l
within
ithi just
j t bounds,
b
d be
b extremely
t
l lawful.
l f l The
Th
people of those extensive tracts rather ranged through than
inhabited them.

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Chapter XVI
Of the Protection sought
In some situations,
situations a nation will seek the protection of
another. This can be accomplished via treaty. But what if
one nation voluntarily submits to another?
This submission may be varied to infinity, according to the will of
the contracting parties: it may either leave the inferior nation a part
of the sovereignty, restraining it only in certain respects,or it
may totally abolish it, so that the superior nation shall become the
sovereign of the other,or,
other or finally,
finally the lesser nation may be
incorporated with the greater, in order thenceforward to form with
it but one and the same state: and then the citizens of the former
will have the same privileges as those with whom they are united.

Chapter XVI
Of the Protection sought
Discusses various individual rights that accrue in this
situation, major one of which is that if individuals disagree
with the submission, they can always leave.
Also when a treaty that involves protection is
constructed, if the more powerful nation does not in fact
protect those it agreed to protect (or if the weaker nation
does not contribute in the way it promised), this nullifies
the treaty.
If the more powerful nation starts to encroach and the
weaker one does not resist, or is silent, that should be taken
as tacit consent to the encroachment (as long as the silence
is not the result of violence/fear).

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Chapter XVIII
Of the Establishment of a Nation
A re-statement
re statement of the idea that if people who want to
cultivate the earth come upon others who have not, the
former have every right to move in.
203. Possession of a country by a nation. . The earth belongs to
mankind in general; destined by the creator to be their common
habitation, and to supply them with food, they all possess a natural
right to inhabit it, and to derive from it whatever is necessary for
their subsistence,
subsistence and suitable to their wants.
wants But when the human
race became extremely multiplied, the earth was no longer capable
of furnishing spontaneously, and without culture, sufficient support
for its inhabitants; neither could it have received proper cultivation
from wandering tribes of men continuing to possess it in common.

Chapter XVIII
Of the Establishment of a Nation
Nation
Nation (sovereignty) and territory
territory (domain) go hand in
hand
Sovereignty implies territory, though territory alone does
not necessarily imply sovereignty
Vacant countries go to whoever claims it first, but they
must do something with it make settlements; cultivate the
soil; actually use it.
it
Free peoples who have domain can group together and
establish sovereignty IF they abide by the law of nations.

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Chapter XVIII
Of the Establishment of a Nation
Uh oh.
oh Once again we see that Indigenous peoples have
rights BUT
209. Whether it be lawful to possess a part of a country
inhabited only by a few wandering tribes. There is another
celebrated question, to which the discovery of the new world has
principally given rise. It is asked whether a nation may lawfully
take possession of some part of a vast country, in which there are
none but erratic nations whose scanty population is incapable of
occupying the whole? We have already observed (81), in
establishing the obligation to cultivate the earth, that those nations
cannot exclusively appropriate to themselves more land than they
have occasion for, or more than they are able to settle and
cultivate. (contd)

Chapter XVIII
Of the Establishment of a Nation
Their
Their unsettled habitation in those immense regions
cannot be accounted a true and legal possession ; and the
people of Europe, too closely pent up at home, finding land
of which the savages stood in no particular need, and of
which they made no actual and constant use, were lawfully
entitled to take possession of it, and settle it with colonies.
g to
The earth, as we have alreadyy observed, belongs
mankind in general, and was designed to furnish them with
subsistence: if each nation had from the beginning resolved
to appropriate to itself a vast country, that the people might
live only by hunting, fishing, and wild fruits, our globe
would not be sufficient to maintain a tenth part of its
present inhabitants.

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Chapter XVIII
Of the Establishment of a Nation
So when a nation establishes a colony
colony, that colony now
forms part of the colonizing nation:
210. Colonies. When a nation takes possession of a distant
country, and settles a colony there, that country, though separated
from the principal establishment, or mother-country, naturally
becomes a part of the state, equally with its ancient possessions.
Whenever therefore the political laws,
laws or treaties,
treaties make no
distinction between them, every thing said of the territory of a
nation, must also extend to its colonies.

Emmerich de Vattel
Beginnings of modern
doctrine of state
sovereignty
Nations are free and
independent of one
another
Each nation is its own
best judge of how its
obligations are met

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Emmerich de Vattel
State sovereignty
involves:
Exclusive jurisdiction
Territorial integrity
Non-intervention in
domestic affairs

i.e., European
conceptions of
property/sovereignty

Emmerich de Vattel
Q: So where did
Indigenous peoples fit
in this treatise of
deVattels?
A: Its not looking
good.

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