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Although it is always a risky intellectual exercise to judge past events and legal developments by contemporary categories and paradigms, it can be argued that one of the first attempts in Spain to protect human dignity took place in the context of the encounter with the New World. The Spanish Conquest of the Americas after 1492 and the debate about the treatment to be given to the Indians paved the way for a very passionate and challenging discussion as to both the nature of indigenous people and the duties of the conquistadores towards them. Against this background, Antonio de Montesinos, a Dominican friar sent to the Americas to accompany the conquerors and to guarantee that Catholic principles would lead the colonial enterprise, preached a revolutionary sermon in 1511 that shocked the conscience of both the conquistadores and the Spanish Crown. He openly denounced the unjust ill-treatment that the Indians were suffering. This sermon had a profound impact in imperial Spain, and moved the King to convene an official discussion of theologians and jurists that led to the adoption of the Laws of Burgos on 27 December 1512, whose main goal was to protect and humanise the Indians and to regulate the rights and duties of the conquistadores. The aim of this chapter is to analyse the religious and philosophical climate in which these Laws were adopted, and to explore to what extent they can be considered an early proclamation of fundamental rights.
THE SERMON BY ANTONIO DE MONTESINOS
On the Sunday before Christmas in 1511 Dominican Father Antonio de Montesinos delivered a highly provocative sermon in the Holy Mass in Isla Española (today's Dominican Republic and Haiti), the first colonial town erected in the New World after the Spanish Conquest. The content of the sermon had been agreed by the whole group of Dominicans, the Order of Preachers, and its principal aim was to publicly protest against the treatment the Indians were receiving. As Lewis Hanke has underlined, this sermon can be seen as ‘the first cry on behalf of human liberty in the New World’.
I would like to start my contribution by paying tribute to the Universal Declaration of Human Rights (UDHR) on its sixtieth anniversary as the first universal instrument to incorporate economic, social and cultural rights (ESC rights) as an essential component of an integral and comprehensive notion of human rights. As stated in the very preamble of the UDHR, one of the goals of the peoples of the United Nations is ‘to promote social progress and better standards of life in larger freedom’, thus explicitly linking fundamental freedoms with the promotion of socio-economic rights.
It cannot be said that in 1948 the UDHR responded to a localising paradigm, since its process of adoption was fully monopolised by nation states, particularly those that dominated the international scene after the Second World War, and did not take into consideration local realities, local needs and local ways of framing the protection of human dignity. The elaboration of the UDHR followed what can be considered as a top-down approach rather than a bottom-up approach. Basically, the seminal document of the human rights movement in the twentieth century sought to offer ‘universal legitimacy to a doctrine that is fundamentally Eurocentric [. . .] Non-western philosophies and traditions were either unrepresented or marginalised, (and) most Asian and African societies were European colonies and not participants in the making of human rights law’. Along the same lines, David Kennedy has defined the origins of the human rights movement as ‘post-enlightenment, rationalist, secular, western, modern, and capitalist’.
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