비토리아 국제법이론의 ‘식민주의’ 성격에 관한 비판적 고찰

The most fundamental and important concepts in Vitoria’s theory of international law would be ‘totus orbis’(whole world) and ‘jus gentium’ re-defined as ‘jus inter gentes.’ Vitoria’s ‘totus orbis’ is a universal community of all peoples. In that sense, it encompasses all human beings regardless of their religion, culture or race. Non-Christians and even ‘barbarians’ are its constituent members. Through the notion of ‘totus orbis’, Vitoria suggested truly ‘international’ community or society. This is the reason why Vitoria is called cosmopolitan and the concept of ‘totus orbis’ is said to be the greatest and most innovative contribution of Vitoria toward international law. Vitoria re-defined traditional notion of jus gentium as ‘jus inter gentes’ (law between nations or peoples). Authors argue that jus gentium re-defined by Vitoria loses its legal character as a Roman domestic law and acquires the character of Law of Nations. According to Vitoria, jus gentium is legislated by totus orbis and applied in it. As a law derived from natural law, jus gentium which is the law of totus orbis binds both Christians and non-Christians, both Europeans and ‘barbarians’. When we acknowledge that Vitoria’s notions of totus orbis and jus gentium correspond international society and international law, we may recognize him as the founder of international law. The main subject of Vitoria’s theory of international law is the relationship between Spaniards and Indio (Indians). In his famous 1539 Relectio ‘De indis’, Vitoria argues that Indio are not slaves but human beings furnished with reason. Vitoria acknowledges that before the arrival of the Spaniards, they were legitimate owner of properties and lands. He denies seven titles of medieval and Christian character as inadequate or illegitimate bases for Spaniards’ possession of Indio and their countries. Instead, he suggests 7 adequate and legitimate titles which enable Spaniards subjugate and possess Indio. Through these newly suggested titles, Vitoria justifies Spaniards’ colonialist invasion into the Indio’s country. The Relectio ‘De iure belli’ is a lecture supplementing the previous Relectio of ‘De indis’. Principle questions dealt with in this Relectio are: whether Christians may make war; in who’s hands is the authority to declare or wage war; what are the causes of just war; in a just war, how extensive and what kind of measures may be taken against the enemy? According to Vitoria, difference of religion, extension of empire or personal glory of prince cannot be a reason and cause of just war. A wrong inflicted is the only just case of a war. In addition, Vitoria emphasizes that for a war to be a just war “exceedingly careful examination of the justice and causes of the war” must be made before hand. Vitoria also enumerates many behaviors which may not committed even in a just war. Through these limitations and constraints, Vitoria seems to have intended to protect Indio form Spaniards’ atrocities. Regarding Vitoria’s theory of international law, there are conflicting assessments. Some authors regard Vitoria as a cosmopolitan, a scholar who envisioned a universal community of all peoples based on equality of people and clearly presented specific natural rights. They admit that Vitoria articulated solidarity of human beings, which constitutes the foundation of 20th century universal human rights. Scholar like James Brown Scott sees Vitoria as “prophet as well as founder of a law adequate to meet the changing order of a progressive world”. Other authors criticize Vitoria for being thoroughly colonialist, as he provided the Thomistic and humanistic basis for the justification of Spanish invasion and conquest of Indio. In part, Vitoria’s theory of international law contains elements to be assessed positively. However, taken as a whole, his theory is of the character of colonialism, useful for the Spanish domination of Indio.