Vol. 15 No.3 (March 2005), pp.269-273
INDIGENOUS PEOPLES IN INTERNATIONAL LAW, by S. James Anaya. New York: Oxford University Press, 2004. 408pp. Hardcover. $74.00 / £35.99. ISBN 0-19-517349-X. Paper. $24.95 / £15.50. ISBN 0-19-517350-3.
INDIGENOUS SOVEREIGNTY AND THE DEMOCRATIC PROJECT, by Steven Curry. Burlington, VT: Ashgate Publishing Company, 2004. 192pp. Hardcover. $99.95 / £55.00. ISBN: 0-75-462340-8.
Reviewed by Renee Ann Cramer, Department of Political Science, California State University, Long Beach. E-mail: email@example.com .
The second edition of S. James Anaya’s INDIGENOUS PEOPLES IN INTERNATIONAL LAW, published in 2004 by Oxford University Press, is nothing short of brilliant. According to the book’s dust jacket, an earlier review in the American Political Science Review notes its “scope, detail, and … rigor” as a reference volume, and a review for the American Society of International Law calls it a “well-documented survey.” Certainly, the Appendix to the book, which contains several primary texts, makes this a valuable reference book. So does Anaya’s exhaustive review of international case law on the topic of indigenous rights. Those two reasons alone are sufficient to recommend that the book be read and assigned; however, INDIGENOUS PEOPLES IN INTERNATIONAL LAW goes far beyond being a reference volume or survey of the field – rather, it contains a complex and compelling argument that indigenous activists need to move beyond contemporary sovereignty claims, and to ground their claims instead within a relatively new framework of international human rights.
The book is divided into three parts and an appendix. Much of the theoretical work of the book is shouldered by the early chapters and the Introduction. Part I explores “Developments Over Time,” and details the shift from a discourse about “sovereignty” to the modern era’s focus on “human rights.” This section traces the development of international law, and important concepts within international law, from what Anaya terms the “early naturalist frame” of Bartolome de las Casas and Francisco de Vitoria, to the modern era’s “human rights” framework. This section is a masterpiece of critical synthesis, and a must-read for anyone engaging in scholarship on indigenous persons, international law, or the concepts of the state, trusteeship, sovereignty, self-determination, and human rights.
Part II defines self-determination, elaborates on the elements constituting it, and upholds self-determination as the “foundational principle” of international human rights law as it applies to indigenous peoples. Anaya writes:
self-determination is identified as a universe of human rights precepts concerned broadly with peoples, including indigenous peoples, and grounded in the idea that all are equally [*270] entitled to control their own destinies. Self-determination gives rise to remedies that tear at the legacies of empire, discrimination, oppression of democratic participation, and cultural suffocation (Anaya, 98).
Chapter 4 elaborates on what Anaya calls the content of self-determination: policies fostering nondiscrimination, cultural integrity (including preservation and development of language, religion, and art), access to lands and natural resources, social welfare and development, and self-government through both autonomy and participation. The subsequent chapter examines the obligations placed on nation-states – through moral obligation, shame, treaties, and international agreements – to respect the principle of self-determination and make strides in achieving it with indigenous peoples.
Part III offers detailed analyses of various international monitoring and complaint procedures, and policing compliance with these norms. This section is especially interesting for those scholars unfamiliar with the significant international legal apparatus meant to ensure compliance. It includes an extensive discussion of various international bodies the U.N. Working Group on Indigenous Populations, the International Labor Organization, and the Inter-American Commission on Human Rights, for example), as well as detailed reference to secondary literature examining their effects.
It is his definition of self-determination, in the Introduction and Chapters 4 and 5, however, and his decoupling of it from the requirement of nation-states, which constitute some of Anaya’s most important contributions in this book. Most conventional understandings of self-determination conflate it with sovereignty, and assume that claims to self-determination are claims to territorial control. Anaya argues, however, that recent international understandings of self-determination, based on human rights discourse, engender an alternative to “state-centered, historical sovereignty” discourses (Anaya, 7).
As well, he claims that
international law – the body of principles, norms, and procedures that today function across national boundaries – remains state-centered, but it is now pulled at by a discourse directly concerned with individuals and even groups. . . . The expanding opening in international law for concern with nonstate entities on humanistic grounds . . . is an opening increasingly free of the bounds of Eurocentric perspectives
which tend to focus on the nation-state as the paramount of political life (Anaya, 53). In this new conception of international law, nation-states and claims to territorial control are only instrumental to self-determination, they do not in themselves constitute self-determination, nor are they essential to it. Anaya writes, “for most peoples . . . full self-determination, in a real sense, does not require or justify a separate state” (Anaya, 7; emphasis in text). And, his elaboration, in Parts II and III, of international norms and mechanisms for non-statist self-determination, is quite convincing.
To be sure, there are limits to Anaya’s analysis. Two points in particular are worth mentioning. First, though he does a nice job of showing that international mechanisms pull nation-states towards [*271] compliance with customary law and norms regarding human rights, it is not always clear that material benefits are gained by indigenous peoples as a result of their interaction with international organizations. Second, I would like to read a discussion about the indigenous movements and activists that petition, lobby, inform, and direct international debate. This, however, is outside of the scope of the book, and perhaps not a fair criticism.
Ultimately, “the central contention of this book is that international law, although once an instrument of colonialism, has developed and continues to develop, however grudgingly or imperfectly, to support indigenous peoples’ demands” (Anaya, 4). Anaya does a tremendously nice job of showing that to be the case, and of proving the larger (and more interesting) claim that state-oriented sovereignty claims are no longer useful or relevant for indigenous actors on the international scene.
It is perhaps unfortunate that, in my reading for this review essay, I turned next to an examination of indigenous sovereignty written by Steven Curry, and published by Ashgate Press for its Applied Legal Philosophy list. Curry desires to rehabilitate the concept of sovereignty from what he terms an overly Classical View ,and to make it compatible with the post-colonial, post-modernist, and multicultural liberal states in which indigenous peoples live. He also desires to make sovereignty a palatable concept to nonindgenous people, and to show how liberal democracy requires that “we” allow indigenous sovereignty.
Curry’s opening pages are astoundingly good. Beginning with a quote from Marx (when was the last time we saw that in the social science literature?), his first paragraph concludes:
we must continue to fear that any injustice we do will serve to undermine, even destroy, our capacity to do justice. We might even discover that we have distorted our conception of justice to fit around the manifest wrongs we ignore, so that we no longer recognize injustice for what it is (Curry, 1).
As the Introduction continues, it becomes clear that Curry’s vision of justice is inseparable from his vision of democracy, and that the injustice indigenous people face is a political injustice of undemocratic governance by colonial states. The political injustices done to indigenous peoples serve, Curry argues, to undermine “the ideals of human rights and popular sovereignty upon which democratic societies are supposed to be built” (Curry, 1).
Curry next explains that his book is meant to be a contribution to an on-going dialogue about democracy and sovereignty. He undertakes a “situationist analysis,” by which I understand him to mean a dialectical, hermeneutic approach, and launches a very nice defense of such an approach against charges of paralytic relativism. His voice is fresh, scholarly, and clear-spoken. By the close of the first nine pages, nearly any reader would be excited to read more.
Fortunately, most readers will not be disappointed by the remainder of the book; Curry convincingly lays out what he calls the problems of instability and “playing with the umpire” (Chapter 2) [*272] brought about by indigenous claims to sovereign powers. And, he does an excellent job of tracing three historical meanings of the term “sovereignty” (from Jean Bodin to Will Kymlicka – or, from Classical views requiring kingly sovereignty to modern and post-modern views of popular sovereignty).
Though he covers little new ground, this genealogy is framed in a new and interesting way – the philosophical discussion is book-ended by examples from indigenous political activism such as the armed stand-off at Wounded Knee in 1973 and the creation of Nunavut (an Inuit Territory in Canada) in 1999. His examples show that at least much indigenous activism has been framed around the call for sovereignty in the form of treaty negotiations and territorial independence. His examples also show the difficulty attendant such demands.
Curry argues that he has rehabilitated sovereignty from its kingly origins, and rescued it from inconsistencies found in some of the models offered by the popular sovereignty theorists. By showing that Western democracy as it is currently imagined and practiced is inconsistent with political injustice of the sort met by indigenous people seeking sovereignty, Curry hopes to establish a foothold for sovereignty movements within nation-states. He writes, “indigenous sovereignty can be revived” (Curry, 170), and that such sovereignty need not undermine nation-state stability. And he concludes: “And so I have come to the view that indigenous sovereignty is a real phenomenon, capable of springing back into a vigorous existence even where colonialism would seem to have destroyed it, just so long as the resistance of indigenous peoples goes on.”
Speaking not to indigenous persons, but to those “non-indigenous citizens of settler states,” he writes:
We face a simple choice. . . [We] must either accept the fact of indigenous sovereignty, and work to achieve rapprochement with it, or we must abandon everything of real value we claim for ourselves. This means in practice taking the institutions of the settler state apart. . . . We should look forward to a post-colonial future. This future is one in which tolerance has been replaced with respect, and in which we have committed ourselves to a society based on justice in which the stability criterion treasured by Classical theorists has given way to the principle of commitment. In this society everyone’s good would matter, and we would find a way to respect both material and social priorities. It may be possible to preserve a good deal of what we have, but perhaps not. In any case we will be able to thank indigenous peoples for forcing us to choose (Curry, 171).
This leaves me wondering, though—is the rehabilitation of the notion of sovereignty necessary for us to enter this respectful, vibrant world?
Both Anaya and Curry engage in explicitly normative pursuits, with the goal of increasing the power of justice claims made by indigenous peoples. Both engage, as well, in constitutive legal theory and philosophy, and in hermeneutic genealogy of key concepts (sovereignty and self-determination). Both have similar goals. Ultimately however, though Curry’s exposition is interesting, I kept wishing he would read and reference Anaya’s volume, and join [*273] the argument that sovereignty – as a relic of colonialism and Eurocentric statism – is no longer the most useful concept for advancing indigenous claims to justice.
© Copyright 2005 by the author, Renee Ann Cramer.