Anaya On International Law And States
There has always been a body of international law as long as there have been separate nations or states that have dealings with each other.
International law became more formalised with the rise of the modern nation-state during the 17th century. Scholars pinpoint 1648 as a critical year in this development. Native American legal scholar, S. James Anaya, puts it this way:
'The era of the independent territorial state began in earnest with the Treaty of Westphalia in 1648, which ended the Thirty Years War and the political hegemony asserted by the Roman Catholic Church....Along with the rise of the modern state came a marked evolution in naturalist thinking. European theorists transformed the concept of natural law from a universal moral code for humankind into a bifurcated regime comprised of the natural rights of individuals and the natural rights of states.' (Indigenous Peoples in International Law (Oxford, 1996, p.13).
International law developed with an almost exclusive focus on states. This, of itself, caused problems for Indigenous peoples, as Anaya points out:
'The very idea of the nation-state would always make it difficult for non-European aboriginal peoples to qualify as such. The concept of the nation-state in the post-Westphalian sense is based on European models of political and social organisation whose dominant defining characteristics are exclusivity of territorial domain and hierarchical, centralised authority. By contrast, indigenous peoples of the Western Hemisphere and elsewhere, at least prior to European contact, typically have been organised primarily by tribal or kinship ties, have had decentralised political structures often linked in confederations, and have enjoyed shared or overlapping spheres of territorial control.' (Indigenous Peoples in International Law, (Oxford, 1996, p.15).
International law has become more developed over the years as improvements in communications - from navigation techniques for sailing ships, to satellite technology - have increased the amount of interaction among states. The establishment of international organisations, such as the United Nations, has intensified such interactions.
But Indigenous peoples whose territory had been taken over by states were simply disregarded in international law through much of the nineteenth century and into the twentieth century, until quite recently. As Professor Anaya says:
'... international law abandoned consideration of indigenous peoples as political bodies with rights under international law, yielding to the forces of colonisation and empire as Western colonisers consolidated indigenous lands within their respective spheres of political hegemony and control. ... [T]he law of nations, or international law, would become a legitimising force for colonisation and empire rather than a liberating one for indigenous peoples.' (Indigenous Peoples in International Law (Oxford, 1996, p.19).
Keywords: Anaya, S. James, indigenous people, International law, terra nullius
Extracts by kind permission from Oxford University Press.
Author: Nettheim, Garth
Source: Oxford University Press