AT THE HEIGHT of the Second World War, Hans Kelsen, a leading proponent of the view that there exists a sharp distinction between politics and law, published an essay entitled Recognition in International Law: Theoretical Observations.1 What Kelsen meant by “recognition” was the recognition of a State in international law. In classic Kelsenian fashion, he argued that “the term ‘recognition’ may be said to be comprised of two quite distinct acts: a political act and a legal act.”2 Political recognition, such as the establishment of diplomatic relations, means that the recognizing State is willing to enter into a political relationship with the recognized community. But this willingness, even if reciprocal, does not turn the community in question into a State in international law. In contrast, legal recognition is constitutive of statehood. It is a legal conclusion—Kelsen calls it “the establishment of a fact”3—that a community meets international legal requirements of statehood. According to Kelsen, “by the legal act of recognition the recognized community is brought into legal existence in relation to the recognizing state, and thereby international law becomes applicable to the relations between these states.”4
Contemporary accounts of recognition in international law treat recognition in declaratory terms, as an act by one State that affirms the legal existence of another State.5 On a declaratory account, whether a State exists in international law does not turn on whether other States recognize it as a State; instead, it turns on whether it possesses the objective attributes of a State. Despite their differences, what declaratory and constitutive accounts of recognition share is the insight, eloquently articulated by Kelsen in 1941, that international law confers legal validity on a claim of sovereignty if it manifests properties that international law stipulates as conditions of acquiring statehood.
This insight assumes renewed relevance in light of the fact that international law increasingly structures and regulates relations between States and non-State actors. Numerous international legal instruments assume that individuals belong to certain communities of value. In some circumstances, communities themselves exist in international law—not as States but as international legal actors in their own right.6 In Kelsenian terms, what criteria does international law provide to determine the legal existence of a community that is legally distinct from the State in which it is located?
This chapter addresses this question in the context of the evolving status of indigenous peoples in international law. International law historically did not recognize indigenous peoples as sovereign legal actors, but international instruments now vest rights in indigenous peoples and establish indigenous peoples as international legal actors to whom States and other international legal actors owe legal duties and obligations. These developments began between the First and Second World Wars, when the International Labour Organization began to supervise indigenous working conditions in colonies. They continued after the Second World War with ILO Conventions 107 and 169, which vested rights in indigenous populations located in States party to their terms.
More recently, the U.N. General Assembly enacted the Declaration on the Rights of Indigenous Peoples,7 which declares that indigenous peoples possess a wide array of rights, including the right of self-determination. It affirms the international legal existence of indigenous peoples by recognizing them as legal subjects, and it renders international law applicable to their relations with States. Some of these international instruments, such as conventions adopted by the International Labour Organization legally bind States party to their terms. Others, like the U.N. Declaration do not, strictly speaking, legally bind international legal actors, but they nonetheless have diffuse legal consequences for the development of both international and domestic law.8
If recognition may be said to be “comprised of two quite distinct acts: a political act and a legal act,”9 what legal act of recognition brings indigenous peoples into existence in international law? What criteria does international law provide to determine the international legal existence of indigenous peoples? Some international legal instruments provide guidance on what constitutes an indigenous population or people, but they are not explicit about what constitutes its international legal status. Others, such as the U.N. Declaration on the Rights of Indigenous Peoples, specify no criteria for determining whether a community constitutes an indigenous people in international law. In this chapter, I argue that questions about indigenous recognition in international law ought to be approached in light of the nature and purpose of international indigenous rights. Indigenous rights in international law mitigate some of the adverse consequences of how the international legal order continues to validate what were morally suspect colonization projects by imperial powers. Indigenous peoples in international law are communities that manifest historical continuity with societies that occupied and governed territories prior to European contact and colonization. They are located in States whose claims of sovereign power possess legal validity because of an international legal refusal to recognize these peoples and their ancestors as sovereign actors. What constitutes indigenous peoples as international legal actors, in other words, is the structure and operation of international law itself.
This way of understanding the status of indigenous peoples in international law explains why they possess human rights that international law does not extend to other minorities. International indigenous rights speak to adverse consequences of the structure and operation of international law that are relatively distinct from those with which international minority rights engage. Whereas minority rights speak to the fact that the deployment of sovereignty as a legal entitlement to structure global politics produces minority communities in States and authorizes States to act in ways harmful to those communities, indigenous rights in international law recognize differences, partly denied and partly produced by the international distribution of territorial sovereignty initiated by colonization, that exist between indigenous and nonindigenous peoples. The morally suspect foundations of the sovereign power that a State exercises over indigenous peoples residing on its territory are why indigenous rights merit recognition on the international legal register.
This chapter develops these claims by engaging with several issues raised by indigenous recognition in international law. What legal conclusions did international law draw from the “political fact” of indigenous peoples in the past? What is the relationship between legal recognition of States and legal recognition of indigenous peoples? What are the legal forms of indigenous recognition, and what ends do they serve in international law? What role does indigenous legal recognition play in the structure and operation of the international legal order? The chapter first heuristically locates Kelsen’s description of the role of recognition in a broader account of international legal rules and principles governing the acquisition and distribution of sovereign authority, and recounts how international law validated claims of sovereign power over indigenous peoples and their territories. It then describes developments in the International Labour Organization that led to the gradual emergence of indigenous populations as legal actors in international law. It also addresses developments in the United Nations, culminating in the recent adoption of the U.N. Declaration on the Rights of Indigenous Peoples. Finally, it offers some theoretical observations on the legal requirements of indigenous recognition in international law, the relation between legal recognition of States and legal recognition of indigenous peoples, and the nature and purpose of international indigenous rights.
When Kelsen wrote that, “by the legal act of recognition the recognized community is brought into legal existence,” what he meant by “legal existence” is international legal recognition.10 That is, the recognized community acquires international legal status as a legal actor vested with sovereign authority over its territory and population. It does so by manifesting attributes that international law requires of States as legal subjects. This is not to say that the community possesses no legal existence before or in the absence of international legal recognition. A community could possess a legal existence by virtue of its own legal system. It could also possess legal status by virtue of the domestic law of the State in which it is located. What Kelsen had in mind was legal status in international law. The legal act of recognition of a community as a State brings that community into international legal existence as a State. It possesses legal rights not simply by virtue of its own laws or the laws of the State in which it is located. It is no longer “located” within a State. It becomes a State unto itself in international law, a subject of international law, governed by international law itself, with its own juridical location in the international legal order.
Kelsen was aware of the objection that, given it is States themselves who are in the business of recognizing the existence of other States, who has sovereignty and who does not in international law looks suspiciously more political than legal. His response was that international law provides the criteria by which a State can be said to exist and empowers States to decide whether these criteria are met. It does not empower States to determine the criteria themselves. For Kelsen, “a community which is to be regarded as a state in an international law sense” must be “constituted by a coercive, relatively centralized legal order;” it must manifest “a power or authority capable of enforcing the enduring obedience of the individuals living within a certain territory;” and it must be “be independent, i.e., it must not be under the legal control of another community, equally qualified as a state.”11 When States establish that “a certain community fulfills these required conditions” of statehood, they perform “the legal act of recognition.”12
Kelsen enlisted States as legal authorities empowered to ascertain whether a community possesses the attributes of statehood because, for Kelsen, facts become law when they are held as such by a competent legal authority in a legally prescribed procedure.13 The value of Kelsen’s contribution lies not in which authority he regarded as performing legal recognition—a view rightly discounted by contemporary accounts of recognition that emphasize that the existence of a State as a subject of international law is not dependent on recognition by other States.14 It lies instead in the insight that the legal existence of a State is a conclusion that the community in question possesses the attributes that international law requires of States as legal subjects.15
Although Kelsen did not use the term, what a community acquires when it is “brought into” international legal existence as a State is international legal authority to exercise sovereign power over persons and territory. International law distinguishes between legal and illegal claims of sovereign power made by communities seeking international legal status as States. Kelsen’s characterization of how a political community becomes a State in the eyes of international law sheds light on the nature of the field itself. By legally validating some claims of sovereign power and refusing to validate others, international law organizes global politics into a legal order in which certain collectivities possess legal authority to rule people and territory. It conceptualizes certain claims of political power as legally valid claims of sovereign authority, legally entitling those entities—States—to govern people and territory.
International law began to validate claims of sovereign power, and thereby began to constitute global politics into a legal order, when European States launched ambitious plans of imperial expansion and began to establish overseas colonies. Each colonizing power viewed itself and others as entitled to claim sovereignty to territory if it could establish a valid claim according to doctrines that governed European imperial practice at the time. Some of these doctrines, such as cession, were antecedents of contemporary international legal principles that regulate the acquisition of sovereignty, but others, such as the doctrines of discovery and conquest, no longer form part of contemporary international law.16
According to the doctrine of discovery, sovereignty could be acquired by an imperial power over unoccupied territory by discovery. If the territory in question was occupied, then conquest or cession was necessary to transfer sovereign power from its inhabitants to an imperial power. However, European claims of sovereign authority over indigenous peoples and territory came to be understood as grounded in a legal fiction that indigenous territory was unoccupied, or terra nullius, for the purposes of acquiring sovereign power. In Kelsenian terms, the political fact of indigenous peoples possessed no international legal consequences. The doctrine of terra nullius represented the legal conclusion that indigenous peoples possessed no international legal existence. International law deemed their lands to be vacant, and neither conquest nor cession was necessary to acquire the sovereign power to rule indigenous people and territory.
International law deemed indigenous territory to be terra nullius because European powers viewed indigenous peoples as insufficiently similar to themselves. In Kelsenian terms, indigenous peoples did not meet the criteria by which a State can be said to exist—criteria which, at the time, emphasized civilization and religion. European powers viewed indigenous peoples to be insufficiently Christian or civilized to merit recognizing them as sovereign powers.17 In the caustic words of Chief Justice John Marshall of the United States Supreme Court, “the character and religion of [North America’s] inhabitants afforded an apology for considering them a people over whom the superior genius of Europe might claim an ascendancy. The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the new, by bestowing on them civilization and Christianity, in exchange for unlimited independence.”18
Imperial powers did not always treat indigenous peoples and territory in this way. Early colonial encounters yielded treaties between indigenous peoples and imperial powers in many parts of the world, which continue to structure legal relations between indigenous peoples and States in which they are located. Throughout most of the period of imperial expansion and colonization, however, these treaties did not possess international legal force. International law stipulates that only an agreement between “two independent powers” constitutes a treaty binding on the parties to its terms.19 The possibility that treaties between imperial powers and indigenous peoples might nonetheless affect the international legal validity of imperial claims of sovereign authority over indigenous peoples and territory was eclipsed in any event by the emergence of the international legal fiction that indigenous territory constituted terra nullius. Regardless of whether imperial powers had entered into treaties with indigenous populations, international law began to validate imperial claims of sovereign power over indigenous peoples and territories on the basis that indigenous peoples were insufficiently civilized to merit legal recognition as sovereign legal actors.
This mode of validating imperial claims of sovereign power achieved greatest prominence in international legal circles at the turn of the twentieth century,20 and its acceptance operated to legitimate international law’s distribution of sovereign power retrospectively. It has since been repudiated as a justifiable basis for the assertion of sovereign power over indigenous peoples and their lands.21 But its effect was to exclude indigenous peoples from international law’s distribution of sovereignty and include them under imperial sovereign power. This process of indigenous exclusion and inclusion vested States with international legal authority for the colonizing projects that they began centuries earlier. The adverse consequences of these projects, which included genocide, forced relocation, and territorial dispossession, are well known and need not be cataloged here. Nor is it necessary to turn a blind eye to the many potential benefits of an international legal order that treats sovereignty as a legal entitlement that it distributes among collectivities it recognizes as States. The important point is that this process of sovereign exclusion and inclusion was not a one-shot affair, occurring sometime in the distant past when international law accepted the proposition that indigenous territory constituted terra nullius. It is an ongoing process of exclusion and inclusion to the extent that it continues to subsume indigenous populations under the sovereign power of States not of their making.
That the international legal order continues to exclude indigenous peoples from its distribution of sovereign power is underscored by the role and function of the right of self-determination in international law. Although the right of self-determination extended legal validity to claims of sovereign independence by colonized populations, it only validated such claims made in relation to territories geographically separate from a colonizing power. Claims made in relation to part of the territory of a sovereign State violated international legal commitments to the “territorial integrity” of that State.22 In 1970, the U.N. General Assembly eliminated any doubt that decolonization threatened the territorial integrity of a State by declaring that the territory of a colony has “a status separate and distinct from the territory of the state administering it.”23 Known as the “blue water doctrine” because of its implication that the right to sovereign independence vests only in colonized populations separated by water from their parent colonial State, this geographical condition prevented indigenous peoples located in sovereign States from acquiring sovereign independence. International law not only excluded indigenous peoples from the international distribution of sovereignty and included them under the sovereign power of States not of their making, but it also restricted the legal capacity to acquire sovereign independence by right to populations not located in sovereign States.
Although international law excludes indigenous peoples from its distribution of sovereign authority and renders them subject to the sovereign power of the States in which they live, international law also purports to protect indigenous peoples from the exercise of sovereign authority. Contemporary international legal protection of indigenous populations formally emerged at the first Berlin Conference on Africa, initiated by France and Germany in an effort to stem mounting tensions over competing imperial claims of sovereignty to various regions of Africa. At the Conference, imperial powers divided up Africa for the purposes of establishing and maintaining colonial territories, and mutually recognized their claims of sovereign power to large swathes of the continent. Conference participants also undertook to “watch over the preservation of the native tribes, and to care for the improvement of the conditions of their moral and material well-being.”24 As a result of the Berlin Conference, what was a justification for excluding indigenous peoples from the distribution of sovereign power—their perceived lack of civilization—began to also form the basis of an international legal duty borne by imperial powers to exercise their sovereign authority in ways that improve moral and material conditions in colonies under their control.25
This duty of protection was subsequently embodied in the Covenant of the League of Nations. Members of the League undertook “to secure just treatment of the native inhabitants of territories under their control.”26 It also received limited institutional form in the League’s mandates system, which applied to territories that had been annexed or colonized by Germany and the Ottoman Empire before World War I. The League’s Covenant declared that these territories, “inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world,” were to be administered by “mandatories”—sovereign States—whose administration in turn was supervised by the League Council and the Permanent Mandates Commission.27 Mandates were grouped into three categories depending on the degree of their “development,” which determined the extent to which they enjoyed political autonomy from their mandatory powers.28 Mandatories were responsible for the “tutelage” of peoples inhabiting mandates in accordance with “the principle that the well-being and development of such peoples form a sacred trust of civilization.”29
International indigenous protection during this period, however, received the most attention from the International Labour Organization. Soon after its inception in 1919, the ILO sought to extend its supervisory authority to working conditions in colonies. This initiative was met with widespread opposition from imperial powers, despite their pledge to “secure just treatment of the native inhabitants of territories under their control.”30 The Constitution of the ILO specified that member States undertake to apply ILO Conventions to which they are party “to the non-metropolitan territories for whose international relations they are responsible, including any trust territories for which they are the administering authority.”31 The Constitution, however, goes on to relieve member States of this obligation “where the subject-matter of the Convention is within the self-governing powers of the territory or the Convention is inapplicable owing to the local conditions or subject to such modifications as may be necessary to adapt the Convention to local conditions.”32 Imperial powers quickly relied on these exceptions to avoid ILO scrutiny of working conditions in their colonies and in territories under their trusteeship. The ILO responded by undertaking studies in 1921 on the working conditions in colonies and dependent territories, establishing a Committee of Experts on Native Labour to formulate labor standards for workers in these regions in 1926, and enshrining these standards in seven Conventions that came into force between 1930 and 1955.33
Unlike other ILO Conventions during this period that called for robust domestic protection of international labor rights, the seven interwar Conventions aimed at indigenous workers set out relatively weak labor standards for the protection of workers in colonies and dependent territories. They included obligations to phase out the use of forced labor; regulations governing the recruitment of workers that sought to minimize the impact of the demand for labor on the political and social organization of the population; requirements that employers enter into written contracts with employees and bear certain costs associated with relocation and transportation of workers; obligations to phase out, “progressively and as soon as possible,” penal sanctions for breach of contract; provisions specifying the maximum length or term of employment contracts; and regulations governing the use of migrant workers.34 Meager as they were, the actual impact of these Conventions on colonial working conditions was negligible. Only one colonial power, Great Britain, ratified all of them before World War II, and other colonial powers either failed to ratify any or ratified only a few after significant delay.35
Who constituted indigenous workers for the purposes of these interwar Conventions had little to do with the fact that their ancestors inhabited territory prior to colonization and imperial expansion. Each Convention defined an indigenous worker as “a worker belonging to or assimilated to the indigenous population of a non-metropolitan territory” or “dependent territory.”36 Indigenous status was conditional on the legal nature of the jurisdiction in which the population in question was located. International indigenous protection between the two World Wars extended to “populations living under a legal status of dependency in conditions of formal colonialism.”37 It did not extend to indigenous populations living in independent States. In the words of Luis Rodríguez-Piñero, “the category of ‘indigenous’ served as a device for the regulation of the relations between the colonizer and the colonized.”38
The distinctly colonial conception of indigenous rights that informed international legal protection under the auspices of the ILO in the inter-war period shifted dramatically after World War II. In 1957, the ILO adopted the Indigenous and Tribal Populations Convention (No. 107).39 Convention 107 was the culmination of a series of initiatives within the ILO begun shortly after the end of the War that sought to expand and deepen its policies with respect to indigenous populations.40 Convention 107 defines two “tribal and semi-tribal” populations that benefit from its protection. The first are comprised of people “whose social and economic conditions are at a less advanced stage” than those enjoyed by “the other sections of the national community and whose status is regulated wholly or partially by their own customs and traditions or by special laws.”41 By including this category, Convention 107 extended its protection to socially and economically disadvantaged populations that were “segregated culturally or legally from national society, whether or not this had arisen from the historical circumstances of colonization.”42 The second category of tribal populations are those comprised of people “who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation.”43 Such people must “live more in conformity with the social, economic and cultural institutions of that time than with the institutions of the nation to which they belong.”44 This second category conceptualized an indigenous population as a particular type of tribal population, distinguished by its ancestral connection to conquest or colonization. In other words, all indigenous populations are tribal populations, but not all tribal populations are indigenous populations.45 What makes a tribal population indigenous, according to Convention 107, is a history of conquest or colonization.
Not only did Convention 107 conceptualize an indigenous population as a tribal population with a history of conquest or colonization, but it also dramatically reconceived indigenous populations as populations located in “independent countries.”46 Before Convention 107, only members of indigenous populations in colonies possessed international indigenous rights. The ILO interwar Conventions provided protection to colonial populations because the jurisdictions in which they were located did not constitute sovereign States and instead fell under the sovereign authority of foreign colonizing powers. After Convention 107, indigenous populations were no longer coextensive with colonial populations. Only people who live in independent States, who “live more in conformity with the social, economic and cultural institutions of that time than with the institutions of the nation to which they belong,”47 and whose ancestors experienced colonization or conquest, possess international indigenous rights. Convention 107 reoriented the focus of international legal scrutiny of the conditions confronting indigenous peoples from the formal colonial context to those confronting indigenous peoples in independent States.
Convention 107’s dramatic reconceptualization of an indigenous population in international law occurred against the backdrop of fundamental changes in international legal relations between colonies and imperial powers. After World War II, the League of Nations’ mandate system was replaced by the U.N. Trusteeship Council, which was empowered to oversee the eventual decolonization of dependent territories that were under mandatory supervision prior to the War.48 The Trusteeship Council did not possess supervisory authority over colonial territories outside the trusteeship system, but the U.N. Charter did establish the principle that member States were to administer such territories in conformity with the best interests of their inhabitants.49 As described in more detail in the next chapter, colonial populations both inside and outside of the trusteeship system became entitled to exercise their right of self-determination to achieve sovereign independence. Reframing indigenous populations in international law as collectivities in independent States as opposed to collectivities in colonies thus resulted in two regimes of international legal protection. The first, governing colonized populations, entitled such populations to acquire sovereign independence as of right. The second, governing indigenous populations, only entitled such populations to protection internal to and compatible with the sovereign authority of the State in which they were located.50
Within this framework, Convention 107 significantly expanded the scope of international legal protection of indigenous populations beyond what existed in the interwar period. While interwar protection represented efforts by the ILO to assert its jurisdiction to working conditions in colonies and dependent territories, Convention 107 had a very different orientation. Although it expressed concern about conditions of employment and required States to prevent various forms of discrimination in the context of work,51 its scope was much more ambitious than labor market regulation. Grounded in universal claims that “all human beings have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity,”52 Convention 107 also reached much deeper into the social, economic, and political life of indigenous peoples. It enshrined a right of indigenous “ownership” of traditional territories,53 it called for the recognition of indigenous legal and cultural traditions,54 and it required governments to provide indigenous populations with social security, adequate health services, and educational opportunities,55 and to respect indigenous customs, institutions, languages, and cultural differences.56
Four features of Convention 107, however, constrained these provisions. First, the rights and obligations enshrined in Convention 107 allowed for exceptions, limitations, and qualifications. As a result, member States had extensive flexibility in meeting its terms. For example, indigenous populations are allowed to retain their own customs and institutions, but only to the extent that they “are not incompatible with the national legal system.”57 Indigenous rights of ownership of land are to be respected “within the framework of national laws and regulations.”58 Special measures are to be enacted to ensure the effective protection of conditions of employment—again “within the framework of national laws and regulations.”59 Social security and educational opportunities are to be extended “where practicable.”60 The Convention stipulated more generally that the nature and scope of the measures to be taken to give effect to its terms “shall be determined in a flexible manner, having regard to the conditions characteristic of each country.”61
Second, Convention 107 cast indigenous protection primarily in terms of nondiscrimination. Although some of its measures required States to provide indigenous populations with a measure of territorial and political autonomy from the broader population, its primary thrust was the elimination of discrimination against members of indigenous populations. It referred to the social, economic, and cultural circumstances of indigenous populations as hindering them “from benefiting fully from the rights and advantages enjoyed by other elements of the population” and “from sharing fully in the progress of the national community” of which they are a part.62 It called for “national agrarian programmes” to secure “treatment equivalent to that accorded to other sections of the national community” with respect to the provision of land and means required to promote development.63 It required all member States to “do everything possible to prevent all discrimination between workers belonging to the populations concerned and other workers.”64 It proscribed forced labor, “except in cases prescribed by law for all citizens.”65 It required measures to ensure that indigenous people “have the same opportunity to acquire education at all levels on an equal footing with the rest of the national community.”66These and other provisions suggest that Convention 107 was meant more to address discrimination between indigenous and nonindigenous people within independent States than to secure a modicum of indigenous autonomy from independent States.
Third, Convention 107 housed both forms of indigenous protection—anti-discrimination and autonomy—in an overarching objective of “integration.” The measures it demands of government were to protect indigenous people in “their progressive integration into the life of their respective countries.”67 Integration is to occur based on respect for “the cultural and religious values” of indigenous people, in recognition of “the danger of disrupting the value and institutions” of indigenous populations without replacing them with “appropriate” and acceptable “substitutes”.68 In this respect, the Convention distinguishes between integration and assimilation, stipulating that integration is not to occur by “force or coercion” or by means of “measures tending towards the artificial assimilation” of indigenous people.69 Beyond these provisions, the text offers little insight into the meaning of integration. But the concept of integration during this period possessed broader currency in anthropology and the social sciences, as well as in the ILO itself. The terms of Convention 107 were consistent with a conception of integration as an enlightened process of cultural adjustment designed to foster economic and social development in ways that reinforce the legitimacy and effectiveness of the national institutions of a State.70
Fourth, Convention 107 comprehends international indigenous protection in temporal and transitional terms. It conceives of tribal, semi-tribal, and indigenous populations as communities that, because of social and economic conditions, cultural differences, distinctive legal identities, and historical circumstances, have yet to become integrated into the life of their respective countries. International indigenous protection, on this view, enables or facilitates a transition from non-integration to integration. For example, the Convention defines the term “semi-tribal” as including “groups and persons who, although they are in the process of losing their tribal characteristics, are not yet integrated into the national community.”71