Doctrine of Discovery and Human Rights

Developed centuries ago and still used in some legal systems, including US legal reasoning, the Doctrine of Discovery is a legal and religious conceptual framework and legal and religious systems deployed for centuries to justify Christian colonial conquest. It formalized the ideas that privileged European peoples, culture and religion over all other peoples. In the context of the Americas, the Doctrine of Discovery has led to the seizure of Indigenous lands and the displacement of Indigenous peoples. In Canada, many Indigenous peoples were forced to accept treaties with the colonizers who were backed by the absolute political power and religious authority expressed by the Doctrine. Throughout, Canadian law interpreted these agreements as surrendering title and control, despite these concepts being largely alien to Indigenous cultures. From these examples, it is clear that many of the human rights of indigenous peoples were violated and the outcome of these violations have never been remediated in fair and meaningful ways.

A Translation of the Doctrine of Discovery Pope Alexander VI. Demarcation Bull Granting Spain Possession of Lands Discovered by Columbus Rome, May 4, 1493. Alexander, bishop, servant of the servants of God, to the illustrious sovereigns, our very dear son in Christ, Ferdinand, king, and our very dear daughter in Christ, Isabella, queen of Castile, Leon, Aragon, Sicily, and Granada, health and apostolic benediction. Among other works well pleasing to the Divine Majesty and cherished of our heart, this assuredly ranks highest, that in our times especially the Catholic faith and the Christian religion be exalted and be everywhere increased and spread, that the health of souls be cared for and that barbarous nations be overthrown and brought to the faith itself. Wherefore in as much as by the favor of divine clemency, we, though of insufficient merits, have been called to this Holy See of Peter, recognizing that as true Catholic kings and princes, such as we have known you always to be, and as your illustrious deeds already known to almost the whole world declare, you not only eagerly desire but with every effort, zeal, and diligence, without regard to hardships, expenses, dangers, with the shedding even of your blood, are laboring to that end; recognizing also that you have long since dedicated to this purpose your whole soul and all your endeavors--as witnessed in these times with so much glory to the Divine Name in your recovery of the kingdom of Granada from the yoke of the Saracens--we therefore are rightly led, and hold it as our duty, to grant you even of our own accord and in your favor those things whereby with effort each day more hearty you may be enabled for the honor of God himself and the spread of the Christian rule to carry forward your holy and praiseworthy purpose so pleasing to immortal God. We have indeed learned that you, who for a long time had intended to seek out and discover certain islands and mainlands remote and unknown and not hitherto discovered by others, to the end that you might bring to the worship of our Redeemer and the profession of the Catholic faith their residents and inhabitants, having been up to the present time greatly engaged in the siege and recovery of the kingdom itself of Granada were unable to accomplish this holy and praiseworthy purpose; but the said kingdom having at length been regained, as was pleasing to the Lord, you, with the wish to fulfill your desire, chose our beloved son, Christopher Columbus, a man assuredly worthy and of the highest recommendations and fitted for so great an undertaking, whom you furnished with ships and men equipped for like designs, not without the greatest hardships, dangers, and expenses, to make diligent quest for these remote and unknown mainlands and islands through the sea, where hitherto no one had sailed; and they at length, with divine aid and with the utmost diligence sailing in the ocean sea, discovered certain very remote islands and even mainlands that hitherto had not been discovered by others; wherein dwell very many peoples living in peace, and, as reported, going unclothed, and not eating flesh. Moreover, as your aforesaid envoys are of opinion, these very peoples living in the said islands and countries believe in one God, the Creator in heaven, and seem sufficiently disposed to embrace the Catholic faith and be trained in good morals. And it is hoped that, were they instructed, the name of the Savior, our Lord Jesus Christ, would easily be introduced into the said countries and islands. Also, on one of the chief of these aforesaid islands the said Christopher has already caused to be put together and built a fortress fairly equipped, wherein he has stationed as garrison certain Christians, companions of his, who are to make search for other remote and unknown islands and mainlands. In the islands and countries already discovered are found gold, spices, and very many other precious things of divers kinds and qualities. Wherefore, as becomes Catholic kings and princes, after earnest consideration of all matters, especially of the rise and spread of the Catholic faith, as was the fashion of your ancestors, kings of renowned memory, you have purposed with the favor of divine clemency to bring under your sway the said mainlands and islands with their residents and inhabitants and to bring them to the Catholic faith. Hence, heartily commending in the Lord this your holy and praiseworthy purpose, and desirous that it be duly accomplished, and that the name of our Savior be carried into those regions, we exhort you very earnestly in the Lord and by your reception of holy baptism, whereby you are bound to our apostolic commands, and by the bowels of the mercy of our Lord Jesus Christ, enjoy strictly, that inasmuch as with eager zeal for the true faith you design to equip and dispatch this expedition, you purpose also, as is your duty, to lead the peoples dwelling in those islands and countries to embrace the Christian religion; nor at any time let dangers or hardships deter you therefrom, with the stout hope and trust in your hearts that Almighty God will further your undertakings. And, in order that you may enter upon so great an undertaking with greater readiness and heartiness endowed with benefit of our apostolic favor, we, of our own accord, not at your instance nor the request of anyone else in your regard, but out of our own sole largess and certain knowledge and out of the fullness of our apostolic power, by the authority of Almighty God conferred upon us in blessed Peter and of the vicarship of Jesus Christ, which we hold on earth, do by tenor of these presents, should any of said islands have been found by your envoys and captains, give, grant, and assign to you and your heirs and successors, kings of Castile and Leon, forever, together with all their dominions, cities, camps, places, and villages, and all rights, jurisdictions, and appurtenances, all islands and mainlands found and to be found, discovered and to be discovered towards the west and south, by drawing and establishing a line from the Arctic pole, namely the north, to the Antarctic pole, namely the south, no matter whether the said mainlands and islands are found and to be found in the direction of India or towards any other quarter, the said line to be distant one hundred leagues towards the west and south from any of the islands commonly known as the Azores and Cape Verde. With this proviso however that none of the islands and mainlands, found and to be found, discovered and to be discovered, beyond that said line towards the west and south, be in the actual possession of any Christian king or prince up to the birthday of our Lord Jesus Christ just past from which the present year one thousand four hundred ninety-three begins. And we make, appoint, and depute you and your said heirs and successors lords of them with full and free power, authority, and jurisdiction of every kind; with this proviso however, that by this our gift, grant, and assignment no right acquired by any Christian prince, who may be in actual possession of said islands and mainlands prior to the said birthday of our Lord Jesus Christ, is hereby to be understood to be withdrawn or taking away. Moreover, we command you in virtue of holy obedience that, employing all due diligence in the premises, as you also promise--nor do we doubt your compliance therein in accordance with your loyalty and royal greatness of spirit--you should appoint to the aforesaid mainlands and islands worthy, God- fearing, learned, skilled, and experienced men, in order to instruct the aforesaid inhabitants and residents in the Catholic faith and train them in good morals. Furthermore, under penalty of excommunication "late sententie" to be incurred "ipso facto," should anyone thus contravene, we strictly forbid all persons of whatsoever rank, even imperial and royal, or of whatsoever estate, degree, order, or condition, to dare without your special permit or that of your aforesaid heirs and successors, to go for the purpose of trade or any other reason to the islands or mainlands, found and to be found, discovered and to be discovered, towards the west and south, by drawing and establishing a line from the Arctic pole to the Antarctic pole, no matter whether the mainlands and islands, found and to be found, lie in the direction of India or toward any other quarter whatsoever, the said line to be distant one hundred leagues towards the west and south, as is aforesaid, from any of the islands commonly known as the Azores and Cape Verde; apostolic constitutions and ordinances and other decrees whatsoever to the contrary notwithstanding. We trust in Him from whom empires and governments and all good things proceed, that, should you, with the Lord's guidance, pursue this holy and praiseworthy undertaking, in a short while your hardships and endeavors will attain the most felicitous result, to the happiness and glory of all Christendom. But inasmuch as it would be difficult to have these present letters sent to all places where desirable, we wish, and with similar accord and knowledge do decree, that to? copies of them, signed by the hand of a public notary commissioned therefor, and sealed with the seal of any ecclesiastical officer or ecclesiastical court, the same respect is to be shown in court and outside as well as anywhere else as would be given to these presents should they thus be exhibited or shown. Let no one, therefore, infringe, or with rash boldness contravene, this our recommendation, exhortation, requisition, gift, grant, assignment, constitution, deputation, decree, mandate, prohibition, and will. Should anyone presume to attempt this, be it known to him that he will incur the wrath of Almighty God and of the blessed apostles Peter and Paul. Given at Rome, at St. Peter's, in the year of the incarnation of our Lord one thousand four hundred and ninety-three, the fourth of May, and the first year of our pontificate. Source: http://www.catholic-forum.com/saints/pope0214a.htm

To answer your question on whether the doctrine of discovery impacted human rights and whether it is still a part of international law today, I want to preface with information on the doctrine's principles and drivers of formation so that we can understand what it meant and its consequences today. The doctrine of discovery is an idea of international law that states that when a Christian European country is the first Christian European country to discover a new land, it is subsequently allotted a legal right to that new land (Eclecticreel 2015). The doctrine defined any individual not of the Christian faith to be of lesser value, less human, and unworthy of the right to land ownership. The doctrine clearly defined who was to be divine enough to execute this doctrine. It was only those who knew Christ who were to be of the chosen people, and so what that meant was that anyone who did not know Christ – was not baptized – was characterized as a heathen. According to the doctrine, these people had no souls. They were considered animals, and what these “animals'' (human beings) could not do was own, possess, manage, or use in any way their indigenous land (Eclecticreel 2015). The doctrine was based solely on religion. The Christian faith, or the Christian faith, as understood by the Europeans, characterized them as the dominant peoples, or so they argued, and they believed that God intended for the European Christians to own the entire world (Eclecticreel 2015). Queen Elizabeth was the first to authorize an English expedition in North America in an attempt to establish the first English colonies in North America. When she gave orders to her explorers, she told them to go where no Christian prince had yet been and acquire sovereignty, jurisdiction, and title (Eclecticreel 2015). Notably, terra nullius had restrictions associated with the doctrine; if the land was completely empty and it was true no human lived there, then if a European power arrived upon the empty land, they had the legal right to claim that land. However, when Columbus sailed the ocean blue and found himself in San Salvador, there were around 95 million natives in North and South America, and by the time the United States ended the era of extermination, there were less than one million native peoples. The Europeans were deceitful in their justifications for this excursion, as according to terra nullius, humans were already living on this land that Columbus stumbled upon. Therefore, according to the doctrine, this would have made the land unobtainable. However, Europeans argued that the natives were not using the land the way the European legal systems approved, i.e., the natives were not using the land to the highest use. Standards of productive land outlined in European jurisprudence were that land must be arable, farmed, not rocky or dry; therefore, based on the conditions of the land upon arrival, they determined it to be terra nullius and thus vacant and available for claim and acquisition (Eclecticreel 2015). Chief Justice John Marshall adopted the doctrine into American jurisprudence in 1823. The Supreme Court of the United States essentially said in Johnson V. Mcintosh that the tribe lost their ultimate title to the land when the Europeans showed up and that they could not sell their lands to whomever they pleased; the tribe could only sell their lands to the discovering European country (Eclecticreel 2015). Since the 1400s, the doctrine has been used to justify colonization and establish empires around the world. The doctrine is very much still a part of American law as federal and state courts continue to cite Johnson V. Mcintosh and rely on principles of the doctrine. As for whether the doctrine is still part of international law today, modern-day political executions of the doctrine are clearly seen when analyzing Russia’s claim of the seabed of the Arctic Ocean in 2007 when it placed its flag. In 2010, China also planted its flag on the bottom of the South China Sea. We can even go as far as to question the meaning of the United States planting its flag on the moon in 1969 (Miller 2023). In terms of any international consensus or law to rectify this horrific wrong, there is some international recognition that Indigenous peoples should have the right to use their native lands. In 2007, The United Nations General Assembly adopted the Declaration of the Rights of Indigenous Peoples. However, this is a declaration, not a universal law. It is, at best, a suggestion for countries to adopt this principle into law (Eclecticreel 2015). Moreover, on March 30, 2023, the Vatican issued a statement repudiating the doctrine of discovery and terra nullius; however, it has yet to be repudiated in law or policy outside the Catholic Church (Library of Congress 2023). To this day, intertemporal law states that modern-day territorial boundaries and land titles are to be judged by the law in force at the time of acquisition (Miller 2019). Before moving on to the doctrine's impact on human rights, I want to point out the justifications the Europeans took from the Bible for the doctrine of discovery. First, they looked at the story of the Promise Land; they took from the idea of a covenant people in Exodus coming out and being justified in taking over the land of Cannon, where the inhabitants of the land were put to death as the covenant people had a divine mandate and a divine right to go out, conquer, and slaughter (Eclecticreel 2015). Additionally, they used Romans 13. Essentially, in this passage, God has put in place authority, and through that authority, there will be God-sanctioned rulers of the earth, and these rulers will carry out God's commands (Eclecticreel 2015). "Every person is subject to the governing authorities. For there is no authority except from God, and those which exist are established by God'' (Romans 13:1). The Europeans used this not only to say that the doctrine of discovery outlines this idea that there are divinely sanctioned rulers and kings, but in addition, they are to carry out the purposes of God on earth, and the Europeans used this to sanction their slaughter. This is ironic because, on the same page in Romans 13:8-10, it also says, "'Owe nothing to anyone except to love one another; for the one who loves his neighbor has fulfilled the law. For this, "You shall not commit adultery, You shall not murder, You shall not steal, You shall not covet," and if there is any other commandment, it is summed up in saying, "You shall love your neighbor as yourself." Love does no wrong to a neighbor; therefore, love is the fulfillment of the law.’" Wes Howard-Brook coins a differentiation between the religion of empire and the religion of creation. The doctrine of discovery came out of the 15th century as the primary vehicle for colonization, but Howard-Brook says it really goes back to the beginning of writing both in and outside of the bible (Eclecticreel 2015). Howard-Brook says that in the religion of empire, God is understood as an all-powerful force within the existence of civilized contexts, meaning within cities, ancient empires, and the existence of royal palaces and royal temples that were usually connected (Eclecticreel 2015). The connected temple with the palace symbolizes God’s justification of the King and the King’s authority to rule over the people. However, Howard-Brook points out that throughout the Hebrew Bible, Jesus contested the religion of empire and aligned Himself with the religion of creation. The religion of creation rises from the people’s relationship with the earth itself. Genesis 1:1: “In the beginning, God created the heavens and the earth.” Genesis 1:24: “‘Then God said, “Let the earth produce living creatures according to their kind…’”. Genesis 2:7: “Then the Lord formed the man of dust from the ground..”. In Genesis, people are created in harmony with the earth, out of the earth, and it is considered good. The paradigm of the religion of empire and the paradigm of the religion of creation are opposite of one another and have battled throughout history (Eclecticreel 2015). Howard-Brook asserts that Jesus clearly sides with the religion of creation; Jesus shows us His opinion when He is furious with the Jerusalem temple and the assertion that that is where God is. Additionally, Jesus leads His disciples up a mountain to experience God, and Jesus Himself experiences God outdoors, in the wilderness, and in the river (Eclecticreel 2015). This can be thought to contradict the European framework of thinking, especially European jurisprudence, which determined San Salvador to be terra nullius and thus vacant and available for claim and acquisition because the natives did not use the land in the ways in which they thought it best be used (the Europeans were more aligned with the religion of empire). The third justification behind the doctrine of discovery was the great commission in Matthew 28:16-20 when Jesus tells his disciples to go out into the world and make disciples of all nations. The impact of the doctrine of discovery on human rights is quite simple, and Sarah Augustine said it best: The doctrine “legalized the theft of land, labor, and resources from Indigenous peoples across the world and systematically denied their human rights.” This went on for centuries, and its consequences remain heavy today (Malchik 2024).