<nettime> PAPER: Portugal, colonial laws, and today's reality

["Frederick Noronha (FN)" <fred@bytesforall.org>]

THIS PAPER WAS PRESENTED AT A RECENT SEMINAR IN GOA, INDIA: 

Indo-Portuguese History and Global Trends

Seventh Century Portuguese Legal Regime and Twenty First Century Global
Trends: A Comparative Analysis

By Carmo D'Souza 

Introduction: 

There is a close resemblance between the Sixteenth-Seventeenth  century
problems faced by the Portuguese power in the Indian Ocean and the present
day problems faced by US and allied powers post 11 September events 1in the
international field. Strangely there is some parallel between the measures
that the Portuguese power adopted in order to keep its hold, and the
measures adopted by US and its allies especially in the wake of Afghanistan
and Iraq wars2. It appears that History has repeated itself on the failure
of international community to realize the importance of having binding
international documents and authorities with moral and legal power. The
world is still struggling within the tight jacket of National Sovereignty.3
The same blind race that was witnessed in the sixteenth and seventeenth
centuries in the Indian Ocean is taking place today at a global basis,
amidst criticism and counter criticism, with public opinion wavering as per
events. There is even lack of proper criteria to enable the international
community to objectively assess the political situation. The international
law seems to be nascent at present to some extent, as it was when the
Portuguese rounded the Cape of Good Hope. The present paper will concentrate
on this dimension of international relations.

Indian Ocean in Sixteenth -Seventh Century:

The Sixteenth century changed the existing situation in the Indian Ocean on
the wake of the rounding of the Cape of Good Hope by the Portuguese. The
existing Arab trade stood threatened with the presence of the Portuguese in
the Indian Ocean, thus giving rise to conflict. Conflict resolution
strategies had not been enunciated then as they are today. The Portuguese on
the other hand claimed the right to free trade in the East. The Portuguese
felt that a threat lay to their trade from the Arabs as well as the pirates.
Thus the positioning of the opposite powers and subsequent rearrangement of
other powers aided with religious misunderstandings gave rise to stress and
tensions in international relations. Mutual distrust led to local flair ups,
which in turn led to greater conflicts. The Portuguese with their firepower,
realized in the sixteenth century that they could control to some extent the
trade on the spice route. So naturally all policies as well as the legal
concepts and regime developed was to safeguard the defacto position acquired
thus far through the barrel of the gunboats4.  A very similar positioning is
noticed in the twenty first century with a mention of a war between
civilizations. However to a great extent the policy is to hold to economic
and political power, which is threatened due to changing circumstances.
 
The Portuguese Sea Power5

There were favourable conditions in the Indian Ocean that helped the
Portuguese to build their maritime power on their entry in the Indian Ocean.
C. R. Boxer among other things mentions the following points as regards
Portuguese Sea Trade:

a) The Emperor of Egypt, Persia and Vijayanagar had no armed shipping in the
Indian Ocean

b) Wealthy entrepots  of Ormuz and Mallaca did not possess Ocean going
vessels.

c) The Arabs, Gujerathis , and other Muslims who dominated the trade of the
Indian Ocean had large ocean going vessels as well as small coastal ships,
but even the largest were not provided with artillery and no iron was used
in the hull construction.

d) Portuguese took control of the strategic points in the spice trade
routes. They controlled , Goa, Ormuz, Mallaca and these were supplemented by
many other fortified coastal settlements and trading posts (feitorias ) from
Sofola in north-east Africa to Ternate in Moluccas.

e) The domination of the seaborne trade of the Indian Ocean , first by the
Arabs and later to a large extent by Muslims of Indian origin chiefly
Gujeratis , was achieved in both cases quite peacefully.

f) Many Asian rulers shared the conviction of Bahadur Shah, the King of
Gujerat , that 'wars by sea are merchants' affairs , and of no concern to
the prestige of Kings' 6.

Thus there were  favourable historical conditions that helped the
Portuguese to a certain extent to hold a defacto control of a section of the
Indian Ocean i.e. mainly the Arabian Sea.7.

>From the above, it can be inferred  that unipolar system existed in the
sixteenth century soon after the entry of the Portuguese , as far as a
section of Indian Ocean was concerned.  At least during the first fifty
years Portuguese took control of the sea routes by taking hold of strategic
positions all along the coast. As a result if one ignores the land control,
we can have a model of Portuguese being unchallenged in the seas and an
unipolar system developing in International field. The Portuguese lost this
control on the entry of the Dutch8, the French and the English. The
Portuguese behaviour was in clear lines when an unipolar political power
controls the International scene and there is no higher neutral authority or
a politico-legal document to control such activities.  In such a situation,
the power in control will evolve doctrines, strategies, and methods, to meet
the problems and challenges it faces in the international scenario. The
paramount principle to dominate its actions is the national interest9. The
unipolar power tends to rationalize its behaviour by evolving jurisprudence
to justify its actions. Thus the Portuguese powers justified a number of
actions it took. Such measures when viewed from the angle of other countries
are unfair and unjust. That is why, the events that were recorded with pride
by Portuguese centric historians assuming that they were legal measures,
were considered as plunder and piracy by Eastern scholars.10

The entry of the Dutch and other European powers changed the complexion, and
diluted to a certain extent the Portuguese power. However the Western Powers
did adjust through conflict and settlement to develop a regime, which was
convenient to the West and unfavorable to the natives11.

At the fag end of the twentieth-century the fall of USSR has led to the
dominance of USA and allies in economic and political fields. Hence many
international policies today are a reflection of what happened in the Indian
Ocean earlier. In a very similar situation, the world today even though
controlled by some international regime and institutions, has not come out
of the tight jacket of Sovereignty coupled with National interests , which
permits a country unilateral action, provided it has the power to carry out
the measures.  This was clearly noticed in the Iraq war when US managed to
take action partly and conveniently outside and within the UN regime, purely
led by its national interests or international welfare as defined from its
national point of view.

Lacuna in International Regime 

It is to be noted that the Portuguese assumed that there was a lacuna as
regards International Regime as far as the Indian Ocean was concerned.
Portugal did not apply to the Indian Ocean , the laws of nations as was
known among the European countries. Neither did the other countries apply
those principles with respect to the local inhabitants. So in the absence of
any legal regime in International law of that nature, the Portuguese tried
to carve their own legal system. To their luck they were able to enforce it
by means of gunboat12 diplomacy. They based the Legal System on pillars like
Concept of Discovery, Navigation, Peace treaties , System of Cartazes,
Assumed Titles by their Kings, Quasi-Possession of the Seas , etc. Often
they used circular arguments to support each of them. But the real postulate
on which the system was based, was the defacto control exercised by the
Portuguese.
  
One can compare the lacuna in International regime then and today. When the
Portuguese entered the Indian Ocean one noticed lacuna in international
regime to deal with the new challenges made by discovery and navigation.
However today an improved system of International Law prevails, which is
developing in leaps and bounds. Yet when it came to the question of Afghan
war and more clearly in Iraq war, there appeared to be lacuna in
International Law. Such lacuna may continue for some time, till more bidding
documents on the whole International community with fully developed
institutions evolve. Perhaps it is time to look forward to a more
independent UN or A World Constitution or World Constitutionalism, or a
similar binding document13, based on the experiences of the Portuguese.

Concept of Discovery: 14

The Portuguese evolved the concept of Discovery to build up the legal regime
of their choice for the sixteenth century international relations. They
claimed that certain rights flowed to them because of Discovery. They
claimed possession to the sea or quasi possession on the basis of discovery.
The Portuguese described the Indian Ocean as Mare Nostrum i. e. Our Sea.
Once they rationalized that Discovery gave them the rights that became the
corner stone for their Seaborne Empire. They used it as foundation to claim
other rights.. The following points may be noted about discovery:

1. The Portuguese claimed to have discovered may places in the East.15.

2. Discovery had a tremendous impact on the Portuguese psyche, on its
history and social and cultural life

3. The concept of discovery if granted at all was Eurocentred if one
assesses the situation today and surely meaningless from the Eastern
viewpoint.

4. The Portuguese were so concerned about protecting their right to
discovery that they clamoured for Papal Bulls.

5. The Portuguese Kings requested their captains to carry on the process of
Discovery 16.

6. As part of the process of discovery they put stone pillars whenever they
came across a new land.17

7. The Portuguese believed that the process of discovery resulted in service
to the King as well as gave rise to right of property .18

8. It is interesting to note that as late as 1870, President Grant of USA in
arbitration proceedings , as far as the Bolame dispute between England and
Portugal was concerned , conceded to the Portuguese the right on the basis
of Discovery 19

9. The Portuguese held the Concept of Discovery dearly even in the twentieth
century by appeal to it in their Fundamental Legislations like the
Constitutions. 20
 
It is to be noted that the Portuguese were jealously protective of their
discoveries and desired to safeguard it against others on the basis of prior
discovery. Thus as far as their claim to discovery was based it was
established through physical might, as wells as by a suitable legal regime
developed unilaterally by the Portuguese Sovereign . In the existing
situation in those days , one could hardly expect the Portuguese to
comprehend the difficulties of the opposite powers. International justice
and Equity were not even propounded then especially between Eastern and
Western Jurisprudence. In fact all matters were viewed through a prism of
national interests. It is to a certain extent unfair to judge the Portuguese
on issues that were beyond sixteenth century comprehension. However the
evolution of suitable concepts to further their national policy, are like
stone pillars left by History for the twenty first century globalizing
world.

The mistakes committed by the Portuguese, which is evident to present day
historians, is not always visible to the powers that are positioned in
similar circumstances. They did not certainly strike Portuguese historians
or even western historians in euphoria of discovery. However those
experiences are a lesson for the modern world on how to build an
international regime.  Just like the Portuguese pursued various concepts to
justify the measures adopted then , so too super powers today tend to build
concepts favourable to them in keeping with their national interests. The
arguments used by USA for the Iraq war are being questioned today in various
quarters.

Regime Based On Peace Treaties 

The Portuguese clamoured for their rights based on Peace Treaties. As there
was agreement and consent it was accepted to be just and equitable, as per
the jurisprudence of the times.  The Portuguese made it a point to sign a
number of treaties with a number of rulers in the East. They meticulously
executed them. The following points may be noted about the peace treaties:

1. Often Portugal's gunboat diplomacy in enforcing their control on sea by
arms was the force behind the acceptance of peace treaties.

2. In peace treaties with princely States, Portugal forbade trade with
certain Arab powers. Failure to obey this condition amounted to break of the
peace treaty, consequently legitimizing Portugal's interference with such
trade and justifying application of punitive measures.

3. Frequently one of the clauses that appear in the Peace treaties was that
friends of friendly powers with the Portuguese were to be considered as
friends and friends of inimical powers were to be considered as enemies.
This clause magnified the content of a peace treaty in very general and
sweeping terms.

4. Peace treaties were signed for perpetuity, thus implying a perpetual
right of interference with the local trade in case of violation of the
clauses of the treaty.

5. It is to be noted that the regime meticulously built by the Portuguese
with the aid of Peace treaties collapsed in course of time, especially with
the Portuguese losing power in the Indian Ocean. 21

6. The Peace treaties  sometimes offered incentives as the local ruler was
entitled for the issue of certain number of free Cartazes .22

One may criticize today the regime built on peace treaties, on the ground
that the clauses were coercive considering the existing situation then,
casting a cloud on free agreement. Analyzing from an Eastern point of view,
the clauses were applied to the then existing trade and hence can be said to
be unfair. The process under peace treaties aided with the political power
went beyond cut throat competition. The princely States were forced to
accept the peace treaties as it was very difficult to carry on sea trade
against the threat of force by the Portuguese. It is to be noted that unfair
systems last as long as buoyed by the power of the firearms.

In the twenty-first century, we notice that many multilateral trade
agreements have unfair clauses that are upsetting the existing trade system.
The weak countries are forced to discard the available practices and opt for
the newer systems. The clauses once accepted sabotage the countries economy.
In such circumstances the coercive clauses have to be tested on some kind of
philosophers stone. If one concludes that the Peace treaties by the
Portuguese were unfair a fortiori some of the unfair clauses in multilateral
treaties 23, dumped on the economically weak world. A super international
document like the World Constitution is needed to balance the injustices
arising out of multilateral treaties.

Another important point to be noted is that the regime built on peace
treaties collapsed with the collapse of Portuguese power structures. The
same could be the result today with some of the treaties. Hence there is a
need to build strong international institutions with a world
constitutionalism24 culture . A regime built on peace treaty is on a weak
foundation as noticed today where countries withdraw from their past
commitments. Also there could be a possibility of inconsistencies arising
out of the various multilateral treaties, which will need a super document
to harmonize them. Besides the law should be binding on all groups in the
world functioning within national frame or otherwise.

Promulgation of Laws

As soon as the Portuguese stepped into the process of discovery ,it is to
their credit that at least they promulgated laws convenient to their own
national interests with a view of protecting their maritime trade . This
regime was evolved on the new experiences in the fifteenth , sixteenth and
seventeenth centuries. The following points may be noted about this regime.

1. King Manuel proclaimed Ordenacoes Indianas  in 152025. This was a code to
protect the maritime trade.

2. From time to time various legal provisions were proclaimed to secure the
rights to maritime trade for the King as well as to control navigation and
trade.

3. Various captains and judges were set up at various places in the State of
India to adjudicate violations of this legal regime and they were provided
with suitable regiments.

4. It is to be noted that the legal regime was unilateral and hence did not
cater to the interests of the opposite parties.

5. Lack of justice (Falta de justica) was often the complaint against the
officials which sabotaged the legal regime .

It is interesting that the Portuguese tried to control the seas by a legal
regime. The Ordenacoes were proclaimed and punishments prescribed for its
violations. Though it was unilateral , a legal regime to some extent
justified to their own way of thinking the measures adopted under the law.
It is to be noted that a legal regime imposed by a foreign power can be
questioned. Its authority lies merely on the force, and it stands while the
force last. However the external regime may be tolerated if there is some
element of justice. If this element is lacking the adjudicatory process
becomes a farce. It is interesting to note that in modern democratic
governance, external imposition gives a bad label.

Legal Order Under Papal Authority.

The Portuguese when they found it convenient for their national interests
harped on the Papal authority to build a legal order. The following points
may be noted about the policy of appealing to papal authority in order to
strengthen their rights.

1. The Portuguese thought of the world as Christian Commonwealth and the
purpose of Portugal in entering Asia , was to unite the Indies and the world
in a spiritual empire . 26

2. The Portuguese made it a point to keep the Popes well informed about
their discoveries as well as impress him about them .27.

3. The Portuguese clamoured and obtained Papal Bulls and Grants in their
favour. 28

4. The Portuguese were consistently holding to the Papal Bulls as being
irrevocable , unconditional and were holding them even against the Papal
authorities in the tussle of Padroado29 V Propoganda Fidei.

5. The Portuguese claimed  their rights to discovery , navigation etc. on
the basis of papal Bulls and Grants made in their favour.

It is to the credit of the Portuguese that they attempted to appeal to an
international authority though acknowledged only in their part of the world.
It is to be noted that the Portuguese were not ready to accept the authority
of the successive Popes when they touched their earlier grants conferred on
them , whenever it was not convenient to their interests. For instance they
were not ready to concede some of the rights granted to them earlier when
the Propaganda Fidei was established.  So in such circumstances in absence
of established International Institutions and Law, a country is selective
while seeking recognition as well as abiding by the authoritative decisions
of international institutions. Similar approach was noticed in the
twenty-first century when USA approached UN as well as took action outside
the UN regime in the Iraq war. There was a close similarity between the two
processes though separated by: (1) centuries and (2) better evolved
International Law.

System based on Cartazes.

Though Cartazes had earlier origins, the Portuguese, introduced it in their
own style evolving it to suit their conveniences. M. Pearson referring to
this system in his essay Portuguese in Indian Ocean : An Overview of the
Sixteenth Century 30, puts the following propositions:

1. All ships trading in the Indian Ocean were meant to take a pass or
cartaz.

2. The cartaz specified where the ship was sailing to, and specified what
people , armaments , and goods were no to be carried,

3. Trade with the Red Sea , considered to be a hostile Muslim area was
discouraged or stopped.

4. Turks were not allowed to trade in the Indian Ocean.

5. Spices were declared as Portuguese monopoly

6. Cartazes of a  later date required trading ships to call on Portuguese
ports to trade.

The system of Cartazes was used to not merely as safe conducts but to
reinforce the control of the sea.  Cartazes once accepted meant as per their
Portuguese view an acceptance of their legal system, the conditions imposed,
and agreement on the sanctions to be imposed for violation of the
conditions. Thus the Portuguese looked on Cartazes as giving them a right of
intervention for violations, a right to regulation, acknowledgement of their
Sovereignty and so on over the sea.

Titles: 

One of the steps used by the Portugal to legitimize their control was the
assuming of titles by the Kings of Portugal to demonstrate their possession
to the sea on basis of discovery. . King Manuel assumed the titles of Lord
of Navigation of Ethiopia , Arabia, Persia and India31. The Portuguese Kings
used these titles in correspondence with the other sovereigns and in the
peace treaties. Thus the Portuguese claimed their rights on their titles.

The question of the validity of such step, leads to several complications.
It is to be noted that the Legal System in those days largely depended on
National Sovereignty, where concepts of war, conquest were recognized as
legitimating their claim to a territory. Under such circumstances, on the
lack of international institutions, it is difficult to objectively evaluate
the Portuguese behaviour. From the view of East , the behvaiour of the
Portuguese at sea amounted to plunder . The above is important to understand
international law for new formulation, taking into account the Portuguese
experience.

Possession or Quasi Occupation of Seas32. 

The Portuguese claimed possession or quasi occupation of the Seas based on
several arguments like Discovery, right to Navigation, Peace treaties, as
successors of the Arab Trade and so on. 

The Dutch refuted the Portuguese claim for Mare Clausum with respect to
Indian Ocean. The doctrine of Mare Liberum was propounded in very clear
terms by Hugo Grotius, who is called by some as the Father of International
Law.

On the other hand Seraphim de Freitas in De Justo Imperio Lusitanorum
Asiatico put up the arguments for possession or quasi Occupation of the
Seas. It is interesting to go through the approach as to understand how the
West was able to jurisprudentially justify its actions in the East .The big
debate can serve today to understand the approaches that are noticed in
modern international relations. 

The following points may be noted about the concepts propounded by
Grotius33:

1. He  denied to  the Portuguese  rights based on discovery or res nullius.

2. He felt that it was not permissible to deprive the infidels of his
possesory rights on the basis of his religious beliefs.

3. He pointed that there were places in the maritime zone , such as Jawa ,
Ceylon , which had their own kings, government , laws and legal system,
ruling out the possibility of acquisition of territorial rights by European
powers through discovery or occupation.

4. Grotius regarded unilateral act carried out in disregard to sovereign
authorities governing those countries, as wrong and of no legal effect.

5. He admitted the possibility of acquiring right by conquest or cession as
per the law of nations, which Portugal could not claim with respect to the
Indies except for places like Goa.

6. Grotius refuted possession of the seas as res extra commercium.

7. He ruled out papal donations, as Pope's authority did not extend to Moors
and gentiles.

8. Further, he claimed that the right  of spreading the faith was also
defective as Portugal was amassing wealth neglecting their religious duties.

Following may be noted about the arguments of Freitas34.

1. He spoke of possession or quasi-occupation of seas.

2. He defended Portugal's right of access to the East Indies, on the basis
of freedom for propagating the Christian faith in Non-Christian lands.

3. Even though Pope had no direct jurisdiction on infidels, he had right and
duty to send missionaries. This right included the right to wage war in case
the infidel ruler prevented the preaching of faith. Further he spoke of
delegation by the Pope of this power to any particular nation.

4. As missionary activity was carried through navigation, the Pope was
empowered to regulate it. Similarly the Pope could assign monopoly of trade
to a particular nation to the exclusion of others since missionary
activities needed money for survival.

It is interesting to note the liberal approach of Grotius,35 as well as the
pro-Portuguese approach of Freitas clad in his national psyche, as the title
referred to a Justo Imperio. However the approaches can be explained by
factual positions that the two powers adopted in the East. However in the
process of colonialisation, both neglected the right of the eastern men. It
was like Europe did not find any repugnancy in the process of
colonialisation. It is also important to note that Hugo Grotius conceded
that it was possible to acquire rights by conquest. Perhaps considering the
times , one could expect such an attitude. But conquest as means of
acquiring proprietary rights helped the Dutch policy in the East.

Denial of  Right to the Moors.

The Portuguese claimed  possesory  or quasi-occupation  rights to the Indian
Ocean and on its basis promulgated legal provisions to control the maritime
trade. The Portuguese hover did admit the factual position that they had
snatched this trade from the Moors and Arabs who were in control of the same
prior to the Portuguese take over. However they denied such rights to the
moors. It is to be noted that the Portuguese postulated that as the moors
were infidels, they could not claim rights recognized among Christian Kings
. The heathen character of the moors made them ineligible to acquire rights
over the sea.

The behaviour of the Portuguese in denying rights to the moors is not
surprising. Such policies are witnessed even in the twenty-first century.
While countries are eager to get their rights recognized, they are reluctant
to set up independent systems to which they will be bound themselves that
will recognize the rights of the political rivals. The experience with Human
Rights institutions and Amnesty International on this point are too clear

Conclusions 

The following conclusions can be drawn from the international regime that
the Portuguese attempted to develop in sixteenth and seventeenth centuries
in order to provide solutions to the present day problems facing the
international law:

1. The History of the Portuguese in India in the sixteenth and seventeenth
centuries provides valuable information for the development of International
Law today.

2. The bases of treaties36 need to be deeply researched in order to
understand the multilateral treaty system accepted today in International
law. It is to be noticed that the Portuguese system based on treaties
collapsed on loss of power to control over the Indian Ocean

3. The virus of religious, and civilization biases in international has to
be carefully scanned in adopting an international regime.

4. Binding Authorities like an International Court with compulsory
jurisdiction must evolve out, which will have power over both States as well
as other groups and persons.

5. Just as  Papal Authority was not sufficient to safeguard rights of the
Eastern infidel, so today there is a need to analyse the role of the UN and
other such institutions and make them independent and capable of controlling
the International action of all States .

6. There is a need to reform the UN, or develop other bodies that can cater
to the protection of international interests.

7. Finally there is a need to develop the theme of World Constitutionalism,
evolving suitable jurisprudence and theories to safeguard and respect to
international community .
 
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