Subtle Transformations: International Law, and Indigenous Rights

"Can the post-colonial world deploy for its own purposes, the law which had enabled its suppression in the first place?" This is a question that can never really be set aside, suggests Antony Anghie, in Imperialism, Sovereignty, and the Making of International Law, and one that is best addressed through an effort to recover and engage "alternative histories—histories of resistance to colonial power" and "history from the vantage point of the peoples who were subjected to international law."¹ In Global Indigenous Politics, Anishinaabe scholar, Sheryl Lightfoot, powerfully demonstrates the transformative potential of such alternative histories by investigating the rise and influence of a global movement for Indigenous rights. Lightfoot makes a compelling case that the global movement for Indigenous rights has launched a "subtle revolution"—one that has the potential to remake the international order, confront the limits of human rights liberalism.² Global Indigenous Politics has profound implications for research on Indigenous politics, human rights, international law, transnational activism, and international relations more generally. International laws and norms can be reconfigured and deployed in ways that radically challenge the parameters of international order, Lightfoot contends. The "subtle revolution" of transnational Indigenous activism has been uniquely powerful, she suggests, in exposing and confronting the subtle logics by which colonial relationships are maintained and reproduced.

A number of important recent works challenge scholars to stop treating colonialism as a peripheral dimension of the history of international law, as if, writes Helen Kinsella, "it were simply a jarring note in an otherwise pleasant symphony."³ Works by Anghie, Kinsella, Laleh Khalili, Kamari Clarke, Keally McBride, and Robert Vitalis, among others, investigate how colonial encounters influenced and continue to influence the legal basis of sovereign recognition and the parameters of international humanitarian law.⁴

Although international law was mobilized in the service of decolonization, ostensibly extending sovereign recognition to newly independent states, observes Anghie, this did not entail a meaningful effort to engage legal thinking or practices outside of the Western intellectual traditions that had influenced international law. Legal principles that justified the dispossession of Indigenous peoples, such as the Doctrine of Discovery and terra nullius, were not effectively repudiated or confronted, but only evaded, writes Anghie. Many treaties that had granted territorial sovereignty to colonial powers remained binding, despite having been secured through deceit, conquest, and genocide. The international legal order that is championed as a triumph over "might makes right," Anghie suggests, has been more effective as a tool for masking persistent patterns of subordination and domination established through colonial rule than it has been as a tool for exposing and challenging such patterns.

The expansion of human rights law and the rise of the human rights movement in the decades following World War II altered international law in important ways, influencing the legal basis for sovereign recognition and expanding the scope and reach of international humanitarian law. The emerging human rights framework had some impact on anti-colonial activism and anti-colonial activists would also influence debates on the meaning and role of human rights, though scholars continue to disagree over the nature and extent of these influences.⁵

The post-Cold War expansion of human rights laws and institutions ostensibly empowers transnational activists to challenge the terms of sovereign authority. Anghie recognizes the transformative potential inherent in the commitment to social justice and human dignity that is articulated in the human rights framework. However, he contends that this critical potential has been set aside in favor of an approach to institutionalizing human rights in ways that reassert the "civilizing" logic of previous eras by mandating liberalism as a universal model of "good governance." Anghie and Khalili both observe that powerful states have succeeded in eliding the critical implications of human rights and humanitarian law by normalizing certain legal anomalies, contradictions, or indeterminate jurisdictional spaces. These legally layered, ambiguous, jurisdictional spaces establish an alternative to accepting or rejecting legal authority, which Khalili refers to as a "third way," enabling those in power to select the...