Decolonizing International Law: Jettisoning the Concept of Discovery

How can colonialism be undone? At the end of WWII, nearly a third of the world’s population, or 750 million people, resided in colonies. Eighty former colonies have achieved independence since then. Less than 2 million people now reside in the 17 remaining non self-governing territories whose people have not yet attained a full measure of self-government. While former colonies have gradually achieved their political independence, economic, social, and cultural decolonization remains a work in progress. Decolonization is more than political emancipation. Among the de-colonial strategies, the de-colonization of knowledge is an epistemological approach that aims to overcome the epistemological injustice of coloniality. The chapter aims to contribute to the decolonization of international legal history by examining the long term history of the concept of discovery and focusing on Vitoria and Schmitt’s antithetical positions on the concept. Although the concept of discovery was instrumentally used to justify European seizure of Indigenous lands, already in the early modern period Vitoria and other scholars rejected the epistemological fallacy and injustice of discovery. Adopting a long-term historical perspective can help dismantling the remains of colonial injustice by enabling international lawyers to expose the uncertain foundations of specific legal rules, expose their injustice, and develop tools to right historical wrongs. Thus, it can nurture the emancipatory potentials of international law.