European Conquest and the Rights of Indigenous Peoples Part 1 doc

European Conquest and the Rights ofIndigenous Peoples Paul Keal examines the historical role of international law and politicaltheory in justifying the dispossession of indigenous people

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European Conquest and the Rights of

Indigenous Peoples

Paul Keal examines the historical role of international law and politicaltheory in justifying the dispossession of indigenous peoples as part ofthe expansion of international society He argues that, paradoxically,law and political theory can now underpin the recovery of indige-nous rights At the heart of contemporary struggles is the core right

of self-determination, and Keal argues for recognition of indigenouspeoples as ‘peoples’ with the right of self-determination in constitu-tional and international law, and for adoption of the Draft Declaration

on the Rights of Indigenous Peoples by the General Assembly Heasks whether the theory of international society can accommodate in-digenous peoples and considers the political arrangements needed forstates to satisfy indigenous claims The book also questions the morallegitimacy of international society and examines notions of collectiveguilt and responsibility

paul keal is a Fellow of the Department of International Relations

at the Research School of Pacific and Asian Studies, The Australian

National University He is the author of Unspoken Rules and Super Power Dominance (1983), editor of Ethics and Foreign Policy (1992), and with Andrew Mack, co-editor of Security and Arms Control in the North Pacific

(1988)

CAMBRIDGE STUDIES IN INTERNATIONAL RELATIONS: 92

European Conquest and the Rights of

Indigenous Peoples

Editorial Board

Steve Smith (Managing editor)

Thomas Biersteker Phil Cerny Michael Cox

A J R Groom Richard Higgott Kimberley Hutchings

Caroline Kennedy-Pipe Steve Lamy Michael MastandunoLouis Pauly Ngaire Woods

Cambridge Studies in International Relations is a joint initiative of

Cambridge University Press and the British International StudiesAssociation (BISA) The series will include a wide range of material,from undergraduate textbooks and surveys to research-based mono-graphs and collaborative volumes The aim of the series is to publishthe best new scholarship in International Studies from Europe, NorthAmerica and the rest of the world

CAMBRIDGE STUDIES IN INTERNATIONAL RELATIONS

92 Paul Keal

European conquest and the rights of indigenous peoples

The moral backwardness of international society

91 Barry Buzan and Ole Wæver

Regions and powers

The structure of international security

90 A Claire Cutler

Private power and global authority

Transnational merchant law in the global political economy

89 Patrick M Morgan

Deterrence now

88 Susan Sell

Private power, public law

The globalization of intellectual property rights

87 Nina Tannenwald

The nuclear taboo

The United States and the non-use of nuclear weapons since 1945

86 Linda Weiss

States in the global economy

Bringing domestic institutions back in

85 Rodney Bruce Hall and Thomas J Biersteker (eds.)

The emergence of private authority in global governance

84 Heather Rae

State identities and the homogenisation of peoples

83 Maja Zehfuss

Constructivism in International Relations

The politics of reality

82 Paul K Huth and Todd Allee

The democratic peace and territorial conflict in the twentieth century

Series list continues after index

European Conquest and the Rights of Indigenous Peoples

The moral backwardness of

international society

Paul Keal

The Australian National University

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1 Bringing ‘peoples’ into international society 24

2 Wild ‘men’ and other tales 56

3 Dispossession and the purposes of international law 84

4 Recovering rights: land, self-determination and

5 The political and moral legacy of conquest 156

6 Dealing with difference 185

Univer-my daughters Hannah and Onela Without them I would not have beenable to complete the book.

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European Conquest and the Rights of Indigenous Peoples

argument and Danayarri’s story of colonisation, though in differentways, make the same point: ‘ “Australia” is morally illegitimate to theextent that it is founded on European denial of the continent’s priorownership by indigenous people.’1

To my mind this suggested interesting and important questions aboutwhat constitutes a morally legitimate state and a morally legitimate in-ternational society I argue that the moral legitimacy of states with un-resolved indigenous claims, like those that abuse human rights, is inquestion, and that it follows from this that the legitimacy of interna-tional society as a defender of such states is also questionable Ratherthan accept that the expansion of international society, resulting in theestablishment of the state as a universal form of political organisation,has been a success story, I argue that the dispossession and destruction

of indigenous societies is part of the dark side of the story of expansionwhich needs correction I further argue that the moral basis of interna-tional society ought to be an obligation to promote and safeguard worldorder, understood, not just as order between states, but in human society

as a whole The worth of international society would then be measured

by the extent to which it furthers world order values, including cially the welfare and rights of individuals and sub-state groups, both

espe-of which include indigenous peoples, everywhere

International society is both an idea and assumed to be an actualhistorical and evolving association between states A major reason forthinking that it is more than an idea is that in their mutual relationswith one another states behave as if there is a society of states or aninternational society Through both direct negotiation and unspokeninter-subjective understandings states establish norms and rules thatgovern, not only their conduct towards each other, but also increasinglytowards groups and individuals within their borders To ‘refer to an

international society’, writes Chris Brown, ‘is simply a way of drawing

attention to the (posited) norm-governed relations between states, thefact that there are general practices and customs of international law anddiplomacy to which states usually adhere.’2In this book I am interested

in how indigenous peoples have figured in both the theory and practices

of international society

I have chosen to focus on international society for four reasons First,the story of its origins and expansion is important for understanding

1 Tim Rowse, Mabo and Moral Anxiety, Meanjin, 2 (Winter 1993), p 229.

2 Chris Brown, ‘Moral Agency and International Society,’ Ethics and International Affairs,

15: 2 (2001), p 89.

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contemporary world politics, but is incomplete It has been told as one

in which, according to Bull, the ‘society of Christian or European states[became] global or all-inclusive’.3Bull did not mean to suggest bythis that there were already existing non-Western states waiting to beadmitted to the society of European states Rather, that the modern statessystem originated in Europe and expanded from there to become uni-versal For indigenous peoples the expansion of this society was notall-inclusive As well as anything else the story of the expansion of in-ternational society is one of state formation which often resulted in thedecimation of indigenous peoples or, if not that, at least the destruction

of their cultures Indigenous peoples were isolated from state tion and largely excluded from the full rights enjoyed by citizens of thestates that are the members of international society Understanding thereasons for this exclusion and how the rights of indigenous peoples aremore recently being incorporated into the norms of international soci-ety is necessary to making the story of the expansion of internationalsociety more complete than it has been

forma-Second, early conceptions of international society included als and sub-state groups, as well as states The subsequent inclusion ofindividuals and groups in the theory and practice of international soci-ety has not been consistent or sustained, but is immanent in both and hasfound expression in human rights Further inclusion can be achieved by,for instance, giving formal recognition to indigenous rights

individu-Third, international society occupies the middle ground betweenthe bleak world of realism, in which individuals have no interna-tional personality and sovereign states are driven by their own narrowself-interest, and the morally desirable, but possibly unobtainable,cosmopolitan ideal of the great society of humankind The survival ofinternational society requires states to act sometimes in the interests

of the society as a whole and to defend the internationally acceptedrights of individuals Through the adoption and promotion of indige-nous rights international society could contribute to the achievement of

a more cosmopolitan moral order

Finally, international society is constituted by rules and norms Newnorms regarding indigenous peoples have emerged in the context of in-ternational society and been facilitated by it There is considerable scopefor extending the rules and norms of international society to more fully

3 Hedley Bull, ‘The Importance of Grotius in the study of International Relations’ in H N.

Bull, B Kingsbury and A Roberts (eds.), Hugo Grotius and International Relations (Oxford:

Clarendon Press, 1992), p 80.

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European Conquest and the Rights of Indigenous Peoples

include indigenous peoples This will mean the adoption of norms, such

as self-determination, which states perceive to be against their interests.Self-determination is a particular challenge to states, but I shall arguelater that it need not be Indigenous peoples generally are not seeking se-cession but, instead, control over the conditions of their existence withinalready existing state structures

As an object of study, international society is a central concern of thetradition of theorising about international relations that Martin Wightnamed ‘rationalism’ For Wight, rationalism was one of three such tra-ditions, the other two being ‘realism’ and ‘revolutionism’ Alternativenames for each of these traditions come from the major thinker as-sociated with them Rationalism is consequently also known as theGrotian view of the world, realism as the Hobbesian and revolution-ism as the Kantian.4By ‘rationalism’ Wight did not mean philosophical

rationalism, which contrasts a priori reason with empiricism as sources of

knowledge.5Nor did he have in mind the rational choice theories thatinform neo-realist and neo-liberal theories of international relations.6

Wight’s sense of rationalism is derived from Grotius, who as well asbeing a highly influential thinker about international society, placednatural law at the centre of his thought Natural law, discoverable byright reason, is essential to Grotius’s conception of international soci-ety Natural law binds not only individuals but also states The rights

of states are the rights that individuals have and indeed states derivetheir rights from those of individuals For Grotius, states are the moralequivalents of individuals in a state of nature.7In short, rationalism is

a reference to the use of reason as the means to discovering the naturallaw at the core of Grotius’s conception of international society Naturallaw has long since ceased to have the importance it once had, and as

4 Martin Wight, Gabriele Wight and Brian Porter (eds.), International Theory: The Three

Traditions (Leicester: Leicester University Press, 1991).

5 For a discussion of this see John Cottingham, Rationalism (London: Paladin, 1984),

pp 6–7, and Lawrence H Simon, ‘Rationalism’ in E Craig (ed.), The Routledge

Encyclope-dia of Philosophy, vol ix (London: Routledge, 1998), pp 75–86.

6 See, for example, Robert Keohane, ‘International Institutions: Two Approaches’ in

R Keohane, International Institutions and State Power (Boulder: Westview Press, 1989), Herbert Simon, ‘Human Nature in Politics: The Dialogue with Political Science’, The

American Political Science Review, 79: 2 (June 1985), pp 293–304, Robert Gilpin, War and Change in World Politics (Cambridge University Press, 1981), and Alexander E Wendt, ‘The

Agent–Structure Problem in International Relations Theory’, International Organisation,

41: 3 (Summer 1987), pp 335–370.

7 Richard Tuck, The Rights of War and Peace: Political Thought and the International Order

from Grotius to Kant (Oxford University Press, 1999), p 82.

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inter-to simply carve up thought about international relations ininter-to MartinWight’s three traditions Apart from any other consideration, the iden-tification of Grotius, Hobbes and Kant each with one of the traditions

is misleading, especially with regard to the question of natural ity Sociability encompasses the important issue of how we should treat

sociabil-‘others’ and conceive of proper relations with them Hobbes is seen ically as having promulgated an ‘unsociable’ theory of human naturewhich stands in contrast to the views shared by Grotius and Pufendorfand their successors Locke and Vattel Kant regarded Hobbes as beingright in disparaging the idea of a general society of mankind and dis-missed Grotius and Pufendorf as ‘sorry comforters’.8Contrary to this,Richard Tuck persuasively argues that Grotius, Hobbes and Kant heldessentially similar views on sociability There are thus important con-tinuities as well as differences between the thinkers of Wight’s threetraditions, but to be fair, he did emphasise that there is an inter-playbetween them

typ-My departure point in this book is Bull and Watson’s work on theexpansion of international society.9The book is in some respects a con-tinuation of that project but has drawn from a much more diverse set ofwriters and concerns, from both within and outside of the discipline ofinternational relations From within international relations scholarship

it has been inspired by Andrew Linklater’s work on inclusion, sion and community,10Chris Brown’s insights into human rights, cultureand the ethical character of international society,11 Richard Shapcott’s

11 Chris Brown, ‘International Theory And International Society: The Viability of the

Mid-dle Way’, Review of International Studies, 21: 2 (1995), pp 183–196 Chris Brown, ‘Universal human rights: a critique’ in Timothy Dunne and Nicholas J Wheeler (eds.), Human Rights

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