The Criticism Of Vitoria

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This ambiguity explains why Vitoria has been condemned by several authors for ‘outlining, in clear and stark terms, the colonial origins of international law’ and praised by others for his ‘moral cosmopolitism’ and his modern notion of international community. There is some exaggeration in both positions. At the time of his lecture On the American Indians, colonization of the New World was already a fait accompli and his great ambition was not to legitimate it but instead to constrain and regulate this reality within a general system based on moral and legal precepts.

Within such a construction, the right of communication established the missing link between sovereign entities that are bound to interact and develop relationships. It represented
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The whole world, which is in a sense a commonwealth, has the power to enact laws which are just and convenient to all men; and these make up the law of nations. From this it follows that those who break the law of nations, whether in peace or in war, are committing moral crimes […]. No kingdom may choose to ignore this law of nations, because it has the sanction of the whole world.

The ius communicationis of Vitoria was upheld and developed by Hugo Grotius (1583-1645). Grotius not only endorsed the view of Vitoria, but he also refined and enriched the principle of free movement by delineating its key components: the right to leave one’s own country and the right to remain in a foreign country, as the two sides of the same coin. Hence, while Vitoria set the scene for the free movement of persons under international law, Grotius consolidated and detailed its very
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He reaffirmed free communication in particularly straightforward terms as a fundamental principle inherent to international law: ‘every nation is free to travel to every other nation’ as an ‘unimpeachable rule of the law of nations […] which is self-evident and immutable’. While referring to Vitoria, he recalled that this basic rule of international law was truly universal and relied on ‘the sacrosanct law of hospitality’. Grotius further underlined that such a rule was not limited to common properties (such as the sea) but also applied to the territories possessed by statess: ‘even in the case of the land that has been assigned as private property, whether to nations or to single individuals, it is nevertheless unjust to deny the right of passage (that is to say, of course, unarmed and innocent passage) to men of any
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