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Indigenous people and implanted populations
While the legal and political status of indigenous peoples is in question in terms of territorial disputes, the Americas also include populations that were at one time settlers. The latter encompass those who relocated either willingly such as the Falkland/Malvinas islanders or were forced like former African slaves in the archipelago of San Andres, Providencia and Santa Catalina—i.e. Raizal community.
Regardless of their different circumstances, several of these groups nowadays claim self-determination.[1] Indeed, in the context of international law and politics settlers or implanted populations are considered “persons” and may be able to claim the territory they inhabit, while the legal and political status of indigenous populations is still vaguely acknowledged.
In certain situations, self-determination may challenge the public international law principle of territorial integrity. To bring more precision, it is important to make clear that self-determination centers on people, implies different degrees of autonomy, and does not necessarily mean secession. Indeed, public international law empowers populations to freely decide what is best for them even in cases of territorial disputes. However, sovereignty and self-determination may as well draw together agents with opposing claims over territorial disputes and there may be room for territorial disputes to be resolved by cooperative approaches.
The way in which indigenous people are currently considered in law and politics in the Americas, unsurprisingly, can be traced back to colonial times. Both legally and politically, indigenous people were not legally “persons” or they were considered inferior. Therefore, colonial empires discarded claims to the territories by these native populations. Internationally, there seems to be a move towards supporting indigenous rights but in relation issues other than territorial claims. In the same manner, regional states are reviewing the way they interact with these populations. Arguably, self-determination and consequent self-government could be the next steps in this legal evolution towards the recognition of indigenous rights in relation to territorial disputes.
In contrast, “right-peopling” the territory with settlers willing to relocate from the motherland was a way in which some former colonial powers (and some modern states like Israel) secured their claim to sovereignty over new territories by means of self-determination. Moreover, whether the intention was to use the same means or not to achieve the same goal, a similar situation has stemmed from those who were originally brought to the Americas by former colonial empires as slaves.
Several ongoing territorial disputes in the Americas that include indigenous populations and settlers are examples of the tension between self-determination and territorial integrity. Unsurprisingly, there is scholarly literature supporting both the preeminence of self-determination over territorial integrity and vice-versa. In relation to territorial disputes the choice between self-determination and territorial integrity shows a similar experience, with some cases suggesting preeminence to the former and some others to the latter. Consequently, self-determination does not necessarily override territorial integrity.
Whether to apply self-determination or territorial integrity to a territorial dispute depends on interpreting, weighting and balancing different elements particular to that dispute. Scholarly literature and public international law seem to suggest that self-determination may take priority over territorial integrity unless, for example, an administering authority attempts to use it as a means to an end—e.g. in the case of “plantations.”
It is clear that the choice between self-determination and territorial integrity is as complex as it is controversial. Furthermore, different situations include indigenous people and implanted populations, “plantations” or those who settled in previously inhabited or uninhabited territories.[2]
NOTE:
This blog series introduces, explains and assesses issues pertaining territorial disputes in the Americas including law, politics, culture, history and religion. There will be new posts every Monday, Wednesday and Friday.
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Dr Jorge Emilio Núñez
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[1] For the author’s previous work on self-determination in the context of territorial disputes see Jorge E. Núñez, Territorial Disputes and State Sovereignty: International Law and Politics (London and New York: Routledge, Taylor and Francis Group, 2020), Chapter 3.
[2] The author refers to “previously inhabited or uninhabited territories” intentionally because it may be epistemologically impossible to demonstrate this circumstance. For an extensive analysis on this point see Jorge E. Núñez, Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue (London and New York: Routledge, Taylor & Francis Group, 2017), Chapter 6; in particular “Why ‘just acquisition’ cannot work,” 117-120.
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