신대륙의 ‘정당한 전쟁’과 만민법 -프란시스코 데 비토리아를 중심으로

The conquest of the America is an example of an international conflict occurred between countries with different ideologies and social cultures in the absence of a diplomatic mediator. The person who discussed this problem from a legal and theological perspective during the conquest of the New World was the dominican priest Francisco de Vitoria, who founded the Salamanca School. In this sense, Vitoria is considered a pioneer of international law before Hugo Grotius. The purpose of this article is to examine Vitoria's theory and historical meaning of the conquest and missionary work in the New World, and to examine his theory of just war with a focus on the concept of the Law of Peoples. Vitoria distinguishes the law of peoples from self-evident natural law by defining it as a type of positive law that requires human agreement. He also approaches the concept of international law by defining it as a law of individual national rights, unlike civil law. However, Vitoria argues that if Native Americans do not recognize the rights of foreigners to travel, trade, and reside, they can declare a ‘just war’ against natives. Violation of the law of Peoples is, he says, a moral crime and must be sanctioned by the world community. Vitoria's just war theory ironically becomes an argument for justifying wars of conquest. But he was fundamentally a priest who defended the rights of exploited indigenous people. This is based on universal natural law, which is superior to the law of Peoples, which is the basis for just war.