Beyond Discovery: Decolonizing International Law through Long-Term Historical Analysis

What is it about?

Although former colonies have gradually achieved their political independence, economic, social, and cultural decolonization remains a work in progress, particularly in knowledge systems where colonial epistemologies persist. The chapter contributes to the decolonizing international law by examining the long-term history of the concept of discovery through Vitoria and Schmitt’s opposing perspectives. Although the doctrine of discovery justified European seizure of Indigenous lands, already early modern scholars like Vitoria rejected its epistemological fallacies and injustice. Adopting a long-term historical perspective enable international lawyers to expose the uncertain foundations of colonial legal rules, expose their injustice, and develop tools to right historical wrongs. By deconstructing the doctrine of discovery, we can dismantle international law's colonial foundations and unlock its emancipatory potential. This epistemological decolonization represents a crucial strategy for overcoming the injustices of coloniality that persist beyond formal political independence.

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Photo by The New York Public Library on Unsplash

Photo by The New York Public Library on Unsplash

Why is it important?

The article challenges the idea that decolonization is "done". Most people associate decolonization with political independence movements of the 20th century. This contribution pushes back on that comfortable assumption — arguing that the deeper structures of colonialism remain at work. It shows how law itself was a tool of domination. The "doctrine of discovery" was a legal mechanism that legitimized the seizure of Indigenous lands by simply declaring them "discovered." By tracing this doctrine through thinkers like Vitoria and Schmitt, the text reveals that international law has colonial traces into its foundations. This matters today because legal frameworks governing property, land, and sovereignty still rely on unspoken assumptions. The article also recovers suppressed critiques from within the tradition Even early modern scholars like Vitoria already recognized the doctrine's injustice — meaning the colonial legal order was not inevitable or intellectually unchallenged. This is strategically important: it shows that resources for critique exist within the legal tradition itself. Nonetheless, colonial powers did not just take land; they delegitimized entire worldviews. Deconstructing these foundations is not purely theoretical. It directly affects how courts interpret Indigenous land rights, how international bodies handle reparations, and whether historically marginalized communities get legal standing and recognition.