The Prime Minister of Spain, Pedro Sánchez, likes to invoke international law. Imagine that one day, someone had finally responded to him. Not just anyone, but one of the founding fathers of international law.
It happened just after the Ceuta incident, in July 2026, when tens of thousands people from Morocco surged into Ceuta, a tiny Spanish territory in Northern Africa. The incident caused diplomatic tensions with both Moroccan and European leaders. It was precisely the kind of case that Francisco de Vitoria (1483-1546) used to solve.
Vitoria, a Dominican jurist who taught theology at Salamanca, in Renaissance Spain, was familiar with migration issues. He lived at the time of the discovery of the New World when tens of thousands of Spaniards crossed the Atlantic. He was worried about the massacres they perpetrated against the indigenous people and he then devoted a relectio to clarifying the rights of Indians and of Spaniards. A relectio was an official lecture attended by the entire university, whose purpose was to apply the concepts studied in class to current affairs. Pronounced in 1539, De Indis argued that the Indians were the legitimate sovereigns over their territory – a claim that upset both the Papacy and the Spanish Crown.
Three perplexing questions
Vitoria would ask Sánchez three questions about Ceuta. First, why were there diplomatic tensions at all: had the newcomers cause any harm? But then, if they did not, why did Sánchez call their arrival a “violation of Spain’s territorial sovereignty”? Finally, will harmless foreigners who are refused entry wage wars of retaliation?
To clarify, Vitoria would find it hard to understand why these newcomers have caused any concern at all. Having just arrived, they could only be innocent and it is inappropriate to greet innocent people with fear or hostility. As they have swum to Ceuta with nothing but the hope to work, they appeared to be generous and perhaps too confident. That the Spanish government had deployed its armed forces against them would have stunned Vitoria. In his time, five centuries ago, the Spaniards did not arrive offering their labor; instead, many forced the Native Americans to work for them, at the cost of millions of lives. In spite of this danger, he had still advocated freedom of movement.
Second, Vitoria would not understand why Sánchez describes the arrival of almost naked newcomers as a violation of sovereignty. Vitoria does not underestimate sovereignty. In 1539, his lecture caused a political storm because he clearly recognized the Indians as the rightful masters of their lands. But in no way did sovereignty imply a right to prevent the arrival and settlement of innocent foreigners.
For Vitoria, human beings have a natural right to travel and settle abroad. This is partly for theological reasons: they are all children of God who gave them the Earth in common ownership. But Vitoria also thought that friendship is their natural condition and it would be “against nature to shun the society of harmless folk”. The only limit to free movement is harm: for while it is “inhumane to treat visitors and foreigners badly without some special cause, (…) the case would be different if the foreigners were to misbehave”.
Thirdly, Vitoria would worry that harmless foreigners, treated with unjustified hostility, might resort to wars of retaliation. Indeed, a long tradition (which I summarized here) drew on both biblical and secular sources to argue that such a war would be just. On Augustine’s view, this is exactly “how just wars were waged. For innocent passage was denied, which by the most equitable law of human society ought to have been open.”
Shouldn’t Pedro Sánchez be more concerned about the hostility his refusal is provoking than about a symbolic loss of sovereignty?
Short political answers
Pedro Sánchez did not expect this criticism. He is usually blamed for supporting migrants too much. Soon after becoming prime minister in June 2018, he had made a name for himself by announcing that Spain would welcome the hundreds of people aboard the rescue boat Aquarius, who had been refused entry to Italy and Malta. Not later than this year, he sparked again controversy among his European counterparts by deciding to grant legal status to half a million undocumented migrants living in a vulnerable situation and with no criminal record. More than a million applied.
As for Vitoria’s objections, Sánchez would be brief. First, innocent foreigners who do not misbehave individually can be perceived as harmful collectively when they are too numerous for a small place. Second, when he referred to a “violation of Spain’s territorial sovereignty”, he did not identify anyone responsible, merely mentioning the “mafia and human traffickers” who probably spread misinformation about open borders in Ceuta. Third, harmless foreigners whose entry is denied never retaliate, because in the 21st century, everyone knows that the right to travel and settle abroad is not recognized as a universal right.
Vitoria should accept that times have changed drastically. Contemporary law of nations no longer rests on religious duties of universal friendship, but on obligations entered on by sovereign states. While there is no acknowledged right to travel and settle abroad, the United Nations has adopted a Universal Declaration of Human Rights recognizing only a human right to “leave any country, including one’s own, and to return to it”.
Weaponizing respect for human rights
Much has changed since Vitoria’s time – and even more rapidly since 1948, when the Universal Declaration of Human Rights was adopted. At the time, the UN Commission on Human Rights had warned that a right to emigrate is not effective without facilities for immigration and transit, but had recommended that member states cooperate to provide such facilities. The right to leave any country was eventually adopted in this form with only three abstentions from communist countries which opposed emigration.
For a time, respect for the human right to leave any country allowed Western countries to claim moral superiority over the Communist bloc. After the fall of the Berlin Wall, that right was not merely ignored, but actively undermined. Rich countries conditioned development aid on the ability to curb irregular emigration, thereby denying the right to leave any country, including poor ones.
Today, the erosion of this human right has entered its final phase. A state that, deliberately or inadvertently, respects the right to leave by allowing people to exit its territory is now portrayed not as complying with a human rights obligation, but as threatening another state’s territorial sovereignty.
Political scientists have defined “weaponized migration” as the deliberate use of migration by a state or non-state actor to extract political or economic concessions from another state. The Ceuta incident suggests that political leaders no longer feel threatened only by the deliberate use of migration. They also see a state’s failure to prevent departures as a violation of another state’s territorial sovereignty. This interpretation has applied not only to Morocco but also to Spain which some European leaders have sought to exclude from the Schengen Area. They are thus contributing to the weaponization of compliance with a human right.
Vitoria observed the disregard of a right that the states themselves have recognized. Yet, in his view, the law of nations did not rest on the states’ consent alone. It derived from the authority of the universal community of humankind to establish norms that are just and binding for all. His ideal may have fewer followers today, but Vitoria’s bust still stands at the United Nations headquarters in New York.
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