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The Spanish School
In sixteemth century Spain, Francisco de Vitoria and Bartolome de las Casas strongly argued in support of the rights of the Indians of the Americas as against the Spanish colonialists. They drew on the ideas of earlier writers and, themselves, strongly influenced later legal scholars whose writings were influential at the time of British colonisation of Australia. They had some themes in common. For example, as G C Marks points out:

'Both asserted the universality of human rights. They assumed the equality of all humans as rational beings, whether Christian or not, and consequently they argued that all peoples have the right in natural law to their own laws and rulers. There are differences between Las Casas and Vitoria however.'

Vitoria was a distinguished professor of theology at the University of Salamanca. His conclusion in regard to the Americas was that 'the aborigines in question were true owners, before the Spaniards came among them, both from the public and private point of view'. In other words, their lands were not terra nullius, and 'discovery' by Columbus, and those who followed from Spain, 'gives no support to a seizure of the aborigines any more than if it had been they who discovered us'.

However, Vitoria did concede certain bases to justify Spanish intrusion into the lands of the Indians. Las Casas was more uncompromising. And he clearly perceived that the accusation of barbarism provided the fundamental racial basis of colonialism:

'Worldly ambitious men who sought wealth and pleasure placed their hope in obtaining gold and silver by the labor and sweat, even through very harsh slavery, oppression, and death [of the Indians] ... they devised a means to hide their tyranny and injustices and to justify themselves in their own light. This is the way they worked it out: to assert falsely that the Indians were so lacking in the reason common to all men that they were not able to govern themselves and needed tutors ... they did not hesitate to allege that the Indians were beasts or almost beasts ... They then claimed it was just to subject them to our rule by law, or to hunt them like beasts, and then reduce them to slavery.'

The views on these matters of Vitoria and Las Casas, and others of 'the Spanish School', did not, ultimately, prevent the colonisation of the Americas and the loss of the Indians' rights to govern themselves. But their ideas provided a strand in international law which influenced later writers, and judges, and which also influenced the evolution of international law during the twentieth century.
Keywords: Europe, human rights, native title, New World, property law, terra nullius

Author: Nettheim, Garth