Individuals, communities and states: native and implanted populations
In addition to what platform we may use to define and characterize individuals, communities and states (see previous post), there is yet another point that deserves further exploration, in particular if we aim to incorporate both cosmopolitanism and sovereignty in order to offer a thorough analysis of territorial disputes.
In principle, all individuals, communities and states are equal in relation to law. Internationally, the principle of sovereign equality of the states[1] applies. Domestically, at least democratic regimes recognize the same legal status and consequent rights and obligations to people. However, cases such as the Falkland/Malvinas Islands, the Archipelago of San Andrés, Providencia and Santa Catalina, the Israel-Palestine difference, the Western Sahara and Moroccan settlers, Amazon region, Indonesia and East Timor, Cyprus and Iraq and Kirkuk clearly show the distinction between native and implanted populations.
Native populations
The end of colonial times left an unanswered question, with many indigenous groups in territorial disputes with “civilized” states over what had been classed as “non-civilized” territories.[2] Colonial governments assumed in law and politics either that the indigenous people were not legally “persons”; or that, if they existed legally, they were inferior.
For the former assumption, if they were not “persons” the territories they inhabited were open to acquisition. For the latter understanding, the indigenous populations could have had title to the territories before the colonization but it ended when more developed societies arrived. Therefore, the legal and political justification in colonial times for discarding indigenous people and their claims to the territories they lived in had to do either with acquisition or extinguishment.[3]
Internationally, there seems to be a move towards supporting indigenous rights but in relation to human rights, health, education, etc. In addition to this, the United Nations Declaration is not legally binding. [4] At best, indigenous populations are treated fairly in terms of human rights and are somehow in control of their lives[5], yet their territorial claims remain unanswered.
Regionally, Latin American states are leaving behind the European understanding and changing the way they interact with these populations.[6]
Whether there are new normative grounds for territorial claims based on indigenous rights is still debatable.[7]
Settlers or implanted populations
“Right-peopling”[8] the territory with settlers was a way in which some former colonial powers (and some modern states like Israel) secured their claim to sovereignty over new territories.
Whether these populations have the right to self-determination is a matter of further and detailed research.
What remains puzzling at this point is that in the context of international law and politics settlers are considered “persons” and may be able to claim the territory they inhabit, while the legal and political status of indigenous populations is still unsettled.
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The Americas: natives and settlers.
Author of:
Territorial Disputes and State Sovereignty. International Law and Politics (London and New York: Routledge, Taylor and Francis Group, 2020).
Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue (London and New York: Routledge, Taylor and Francis Group, 2017).
Tuesday 27th April 2021
Dr Jorge Emilio Núñez
Twitter: @DrJorge_World
https://drjorge.world
[1] Hans Kelsen, “The Principle of Sovereign Equality of the State as a Basis for International Organization,” Yale Law Journal 53:2 (1944): 207-220. Note that there is more current academic literature related to the sovereign equality of states. The author includes Kelsen’s 1944 work intentionally to demonstrate how little academia has worked in a multi-disciplinary manner since then to bring a joint solution to long-standing international disputes based on pluralism of states.
[2] M. F. Lindley, The Acquisition and Government of Backward Territory in International Law: Being a Treatise on the Law and Practice Relating to Colonial Expansion (New York: Negro University Press, 1969), 11-12.
[3] Jérémie Gilbert, Indigenous People’s Land Rights under International Law: From Victors to Actors (Ardsley, New York: Transnational, 2006), 1-2.
[4] Jeremie Gilbert, “Indigenous Rights in the Making: The United Nations Declaration on the Rights of Indigenous Peoples,” in International Journal on Minority and Group Rights 14 (2007): 207-230.
[5] S. James Anaya, Indigenous Peoples in International Law (Oxford: Oxford University Press, 2004).
[6] Austen L. Parrish, “Changing Territoriality, Fading Sovereignty, and the Development of Indigenous Rights,” in American Indian Law Review 31 (2006): 291-314.
[7] See, for example, Avery Kolers, Law, Conflict and Justice: Theory of Territory (New York: Cambridge University Press, 2009).
[8] Brendan O’Leary, “The Elements of Right-sizing and Right-Peopling the State,” in Right-sizing the State: The Politics of Moving Borders, edited by Brendan O’Leary, Ian S. Lustick and Thomas Callaghy(Oxford: Oxford University Press, 2001), 15-73.
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