This world is a diverse place, not necessarily in terms of people, as our DNA and our genetic make-up are actually quite similar, but the diversity lies in the imagination of human beings.
Unlike the laws of physics, or thermodynamics; the existence of societal laws, justice, human rights, and even questions of race, lies in our collective imagination.
The “collective imagination” of international rules, laws, and structures defines the modern “world system”. The “creation” of “nation-states”, initially predominantly in Europe, slowly emerged as the dominant system of local rule.
The overall phenomenon of the modern world-system is a comparatively new construct, which found meaning first with the creation of “nation-states” that gave shape to “internal” vs “external” relations, that in turn gave shape to identities, to governing entities.
But the ideological and legitimation tools of the modern world-system can be contradictory. The world-economy is not a bureaucratic empire, but rather an inter-state system composed of sovereign states.
The world-system needs to accommodate those that set the rules and those that don’t. Indigenous peoples, comprising 5% of the world’s population, look after 80% of the remaining biodiversity of this planet. However, the rights of indigenous peoples and the biodiversity they protect remain under threat in the current world system.
Imperial Conquests of Indigenous Peoples
When talking about Colonialism, our minds are drawn to the 15th and 16th century voyages of European nations to South America and Africa, not to actions within Europe (the reconquest and colonisation of the Iberian peninsula), or North American expansion, nor the ongoing actions to partition collectively owned (or occupied) land and its active settlement within Europe.
The exportation of this unique concept outside the borders of Europe was not condemned at the time, it was actively encouraged by most of the leading “think tanks” and philosophers. Goals of monetary gain was always present, as most colonising ventures had a corporate form, but the ideology of spreading civilisation, of the uplifting of peoples, and the development of their territories was a strong ideological driver!
The idea that leaders in far away lands could control whole civilisations elsewhere in the world, was set early. On 7 June 1494, less than two years after the Venetian pilot, Christopher Columbus, “discovered” the Americas under the blessing of the Catholic Church; King Ferdinand II of Aragon and Queen Isabella I of Castile, and King John II of Portugal concluded the Treaty of Tordesillas.
The Treaty of Tordesillas established a demarcation line between the two European nation-state alliances, running from pole to pole around the globe, set at 370 leagues west of the Cape Verde Islands.
The treaty of Tordesillas unilaterally divided the planet into two spheres of interest and “gave” exclusive rights for these two European alliances over the indigenous peoples living under its remit.
The negotiation and agreement were in response to the Papal Bull of Pope Alexander VI, Roderix Llançol i de Borja (or Borgia) originally from Aragon, that “confirmed” the rights of the Crown of Aragon in the “New World” and initially drew an imaginary north-south line 100 leagues west of the Azores islands. The line was unilaterally shifted.
Although written as such, historians now dispute whether the Inter Caetera Bull of 4 May 1493 intended for the Christian empire (imperii Christiani) to hold the “barbare nationes” (barbaric nations) in subjection (“subjicere”) into perpetuity.
But the outcome is clear.
In the superstitious milieu of European peoples, the Catholic Church was at that time the standard setter, the guarantor of ideological and governance support for ventures. Ventures that set out without the backing of the “Universal” Church, were “doomed” to failure and even worse, their participants faced eternal damnation.
Most colonialists didn’t sign up with evil intent. While they often signed up to escape the alternative of persecution and misery at home, for many the intent was more noble, altruistic even. While looking to give themselves a better life they could bring civilisation to those unfortunate not to have it. And these colonialist projects had third party endorsement from the highest levels…
… if they were willing to pay for membership.
Infringing the Rights of Indigenous Peoples
But it was financial backing that gave the real impetus to colonisation. Several systems were used. Along with offering conquered land and the spoils of war (like was done in the European Continental Crusades), the “protection by exclusion” of people from “waste” land to make “improvements“, the system also sometimes included the subjection of the people and their services.
But it wasn’t only uncivilised savages (forest dwellers) that were affected.
Initially, some of the most urbanised and culturally rich enlightened areas were attacked (Toledo, the Languedoc, Machu Pichu, Guatamala, etc…). The excuse was often that they were dissidents (heretics) but their belief in not paying tithes to the church played a dominant role.
In the conquest of Languedoc, Andalusia, Aragon, Valencia, Murcia and Mallorca, during the 13th and 14th century, the Pope and the (now) Spanish Crowns offered the estates and houses of the conquered to the participating Lords directing their mercenaries, in exchange for tithes and taxes paid to the Catholic Church and Crown respectively from those estates.
In 1503, the Spanish Crown introduced the encomienda (it was known as repartimiento when used inside Europe) system, by which the new Spanish settlers (land owners of partitioned land) would be allowed an assignment (a people grant) of indigenous people in the New World to work on the landowners land, for a select period of time.
Typically, an encomienda (people grant) included at least one entire village, up to several hundred men, women, and children, but many of them were enormous and encompassed several villages, which the landowners ruled via agents.
Even then, there were requirements to partner with indigenous peoples in the sense of teaching them to read and write (and an obligation from 1509 to instruct them in the Holy Catholic faith).
But the financial spoils of their efforts did not accrue to the locals.
Apart from a small tax due to the crown, the conquerors were entitled to all the fruits of the labour of that indigenous person, and even his son or daughter (a “deposit” that would last for two lives). This cheap labour allowed for a much larger land conquest than would have been possible without the encomienda system. For a while, the rights of indigenous peoples were not even considered worthy of discussion.
Defenders of the rights of indigenous peoples
That slowly changed. At brief moments in time, there were other individuals that protested against the atrocities committed by colonisers against indigenous people. But this didn’t start recently, attempts to give more rights to indigenous people started almost 500 years ago!
Bartolomé de las Casas, a new world settler agitated on behalf of the rights of indigenous peoples (even to King Charles I of Spain in 1515) and helped influence Pope Paul III to issue the “Sublimis Deus”, a public decree of 1537, which briefly forbade the enslavement of indigenous people in the Americas.
The decree confirmed unchristian indigenous people as rational humans who had rights to freedom and private property…
…but it didn’t last long… the decree was nullified that same year (1537)… and never implemented in the New World.
In 1539, Francisco de Vitoria, a Dominican priest and an authority on legal affairs, who lectured at the University of Salamanca from 1526, wrote two lectures entitled “On the American Indians” (De indis) and “On the Law of War” (De indis relectio posterior, sive de iure belli).
De Vitoria confirmed the rights of indigenous peoples and wrote that they were the true owners of the lands. They had the right to own property…. but he restricted these rights to certain limits.
De Vitoria at the same time spoke of a reciprocal “law of nations”, that “forces an agreement among men and creates the force of law for the world as a whole”. Any transgressions to that “law of nations” by indigenous people could serve to justify Spanish conquest and control. If indigenous people did not obey their basic duties, the conquerors had the right to declare a “just” war on them.
Of course, it was left to Encomienderos to report on the transgressions…
In 1542, Las Casas influenced the passing of the “New Laws of the Indies for the Good Treatment and Preservation of the Indians” (the New Laws). These laws were created to support the rights of indigenous peoples and prevent the mistreatment and exploitation of indigenous people in the labour system.
But Las Casas was forced to return to Spain because of resistance to the “New Laws” by the Spanish conquerors. Even in Spain, the issue was not settled. Juan Ginés de Sepúlveda, who had never been to the Americas, was the key supporter of the opposing view.
Sepúlveda wrote several books justifying the human rights abuses in the wars of King Charles V (of Spain) in Europe and wrote: “Of the Just Causes of War against Indians”. He included “saving the innocents” as a just cause.
In 1550, King Charles V suspended all the conquering activities in America and asked Las Casas and Sepúlveda to debate the rights of indigenous peoples in front of a jury of countrymen.
Las Casas claimed the King and the Pope had no jurisdiction over indigenous people because indigenous people were not Christians. Las Casas postulated that indigenous people were fully human and that forcefully subjugating them was unjustifiable. Sepúlveda argued against the New Laws and posited that indigenous people were less than human, and required “civilized” masters to become civilized.
Jurisdiction and Sovereignty
In his argument, Las Casas stated that Crown jurisdiction over indigenous peoples are only transferred (1) via location (if indigenous people lived among “Christians”), (2) by reason of origin, or (3) if a person is a vassal and has taken an oath of fidelity, and (4) when a crime is committed in someone’s jurisdiction, either against the ruler himself or against the property or persons who are his subjects.
Of course, the rest of the world wanted to subject these people to their norms and systems (even though democracy wasn’t even remotely reestablished). The belief was that people outside the state system has no authority to protest legal actions by the state.
The debate highlights the problems of black and white categorizations of the world’s legal systems. Las Casas emphasized the point that the term barbarism does not apply to a group of people who follow a particularly offensive set of beliefs but has to refer to individuals…. and went on to define a “just” war in terms of injury, thereby constraining the use of war as a political and moral tool.
Las Casas offered an alternative framework of “just wars” that focused on injury (this is strongly ignored by historians) and warned against including humanitarian benefits in the “just” (moral) cause criterion.
For Las Casas, even the death of a few to save the many does not justify the widespread and long-term evils of war. Las Casas concluded that saving the innocent and paving the way for a specific moral outcome are admirable ends, but not sufficient “just” or equitable causes to implement external rules over people that are not part of the institutional process.
He was ignored!
Impact of the Debate
No details of the deliberations or decisions by the jury around the Valladolid debates survive, but the outcomes are clear to see.
The encomienda system was formally abolished in the 18th century… but by then had already been altered into the Hacienda and Corregimineto systems (for Private and Publicly owned land respectively), and of course then cheaper, stronger labour (slaves) could be imported from Africa… elsewhere the rights of indigenous peoples would face stern tests… and lose.
The system of grabbing collectively owned land under moral causes continued, but now the settlers would be support by financial investors willing to back their expansion ventures with money to acquire cheap land and slaves to de-risk their projects.
Jurisdiction and Sovereignty
The rights of indigenous peoples and demands for land and political sovereignty, collective autonomy and control over energy, technology and food production, remain clouded by concepts (and norms) formed hundreds of years ago.
The Treaties of Westphalia (1648), gave shape to a western ideological interpretation of sovereignty, international law, and “internal” vs “external” relations, largely based on the Justinian Code (Roman Law).
This “new” world order, emerged from side-by-side with the one ruled by religious authority.
Sovereign states (within distinct geographically separate territories) exercised jurisdiction and self-determination over specific territories and were respected if they had the power to “dominate” and “influence” geopolitically, to enforce their legal rights outside of their own territory (extraterritoriality).
Before Westphalia, intellectuals like Huig de Groot (Hugo the Great, or Grotius) in 1625 already argued that collectively owned land can only become subject to private ownership “by a kind of agreement, either expressed, as by a division or implied, as by occupation”.
Global environmental protection poses a difficult challenge to the international legal system. Can an individual or a nation continue to pollute the global commons, the air, the oceans, indefinitely because of their private property rights? Grotius argues, the intention was “to depart as little as possible from natural equity“.
Calls for increased levels of global environmental protection challenge both the ways in which individual countries use natural resources and the equality of the distribution of resource use between heavily and lesser industrialized nations.
The scale on which natural resources are consumed and wastes are produced is already immense, yet many countries still lack and desperately need the benefits of industrialization and economic development.
When considering environmental actions, preservation of Nation-State autonomy, and even State autonomy in Federations, complicates legal and physical responses and can trigger nationalist interpretations of domestic rules that can lead to unequal responses and even inaction.
So, in a very real sense, environmental action depends on anarchy (as opposed to hierarchy), and rejects the narrow interpretation of fiduciary responsibility… of national sovereigns only to the stakeholders within its borders… of investment firms only to fund investors.
International environmental laws submits sovereign and financial actors not merely to the lowest common denominator, but requires the highest standards, when addressing scientific challenges related to ozone depletion, or climate warming, or rain forest destruction.
It was Huig de Groot (Hugo the Great, or Hugo Grotius) that first introduced the concept of proportionality to international law, the balancing of legitimate and illegitimate interests of parties, and first promoted the creation of an international society.
The Huguenots of today are pushing for united international responses to environmental problems. For political solutions to challenges of resource allocation and distribution. A purely scientific approach to the environment is not expected to achieve much.
To affect real change, and achieve sustainable outcomes, political- and responsible investments-decisions should do more than be governance-focused exercises rigged to benefit those setting the rules…
Investments should enforce the highest standards to achieve environmental improvement.
The Huguenot ideal of minority sovereignty equal to that of states (like power for indigenous peoples) are supported by the notion that co-existence is one of the (if not the main) objectives of international law, the core ideals of an international society.
Although these ideals were accepted on the high seas, outside of national boundaries, where they suited powerful interests, they struggled to find grip in civil law.
Against the Huguenots, the internationalists, there are populist groups that prey on nationalistic sentiments to play a blame game, and highlight the imagined difficulties of a transition, and seek to block environmental action.
Major judicial bodies, like the US Supreme Court, are shifting to a statist interpretation of international and (by implication) environmental law.
Collective Rights to Land
Even in Europe, most lands were then collectively owned… and decisions about the land were collectively taken by local governing bodies… but that would rapidly change. Influential government studies often influenced by private investors would point out the merits of protecting, of improvement of the forests by exclusion of the peoples living therein.
After Westphalia, intellectuals, like John Locke, argued that private property could be transferred without the consent of others, as long as individuals (and their slaves, of course) “mixed their labour” with the property “removing it from the common state nature hath placed it in“. The war to shift control of collectively owned land to private or state ownerships dramatically accelerated.
A flurry of conservation laws from the 1660s onwards would help the wealthy secure the rights to remove forest dwellers from the land.
BUT the war started much earlier!
The First Official Statute in the Kingdom of England, the Statute of Merton (of 1235/36), (in chapter 4) gave the right to the Lords of the Manor to enclose collectively owned lands and “waste” lands, with a proviso, that “sufficient” land was made available to their tenants.
- This First Statute of the United Kingdom remained in part on the Statute Book of Parliament for over 700 years, despite that the common people had no say in the passing of this Statute.
- Likewise, forestry conservation regulations throughout most of Europe were designed to protect the revenues of monarchies and wealthy private interests, rather than actually conserve the ecosystems.
- Most of the protection efforts sought to remove, or evict, most often forcefully, the people living in the forests, the savages.
- Between 1235 and 1850, many privatisation Acts were passed in Europe (and encroachments encouraged by the governments) converting collectively used land into the exclusive private property of large landowners.
- Attempts to convert collectively owned areas to privately owned “conservation” areas were met with protests by commoners, and in courts, but that often were met with violent response by landowners. A steady path of biodiversity destruction ensued.
Colonialisation shifted the uniquely European process of converting collective ownership to private ownership internationally. Jurisdiction was confirmed spuriously, in many cases unilaterally, but often through consent by fellow imperialist states, like the Treaty of Tordesillas, with no regard for the rights of indigenous peoples.
It was simple, the colonising party would merely not recognise the authority of the leaders of indigenous people, or assign authority to a different legal entity, circumventing local laws. Or would use the standard setters of morality at the time, the catholic church, to help negotiate for land acquisition (the concept of allowing usufruct, was often translated into ownership by religious translators).
Alternatively, imperial forces could simply recognise a sympathetic smaller tribe, provide them with “protection”, superior forces and funding, and then find an appropriate cause to secure the sympathetic group in a leadership role over the majority groups.
In places where there are civil rights securing collectively owned land, these rights were only achieved through hard fought activism by local communities. In every European colony, land policies designed to support those contributing financing and operational support, gave the elite rights to seize the most fertile lands for its own purposes.
The story of how Abyssinia (Ethiopia) managed to become the first and only African nation to resist imperialism from 1867 to the present, despite initially having inferior weapons, a lack of access to foreign military advisors, and facing exposure to what amounted to biological warfare, is informed by good strategic decisions and partnerships between local tribes and partnerships with conflicting international powers.
Ethiopia continued to administer a collectively owned land system, later reinforced by socialist governments that confiscated the lands of the elites and churches in the name of the landless. But soon the state itself became an agent in manipulating property rights and enclosing collectively held lands to wrest control of the land away from indigenous peoples supported by international governments.
International Legal Protection
Almost 500 years since de las Casas and de Vitoria argued for the human rights of indigenous peoples to be translated into civil rights, the struggle continues. During the “official” imperialist period, in international law, courts recognised an open-ended legislative power for the Crowns of the imperialist nations in colonial protectorates, uncontrolled by broader common law principles that operated at home.
Colonialists held that conquered lands were “inhabited only by a few people leaving little impression on the landscape” and that individual property rights were transferred merely by transaction costs. The trade-off at home and abroad was between efficiency and equity, improvement and proper conservation. In all instances, “progress” (efficiency, improvement) won out over equity and conservations
Imperial expansion was facilitated by international agreements that included a requirement to sign up to a standard of governance of the standard setters (then an oath of fidelity to the crown), and where compliance with these standards were not suitably forthcoming, it was swiftly followed allegations of failures, by “crimes against humanity”… and involved severe repercussions, that never (by design or intent or neglect) made the world a better place, but made the standard setters and their agents very, very, rich…
The inability to protect themselves, grossly exaggerated “crimes against humanity” became the rallying cry to justify wars fo civilisation against indigenous people… The leading world powers would succeed in making their ideas and political positions prevail to suit the interests of their own people, at the expense of others.
Rights of Indigenous Peoples
Over the six hundred years from the signing of the Treaty of Tordesillas, the imperial military conquest of the Americas, Africa, and Asia continued unchecked and unpunished, without significant ideological opposition or remorse from the perpetrators.
While a minority championed the cause of the indigenous peoples, as confirmed in the Vallodalid debates, outcomes have universally confirmed that common law interpretations of property ownership were selectively applied to suit the powerful.
Indigenous peoples remain largely outside of the legal process in most countries.
Rights to land and resource issues, particularly the dispossession of indigenous peoples from their lands, has been at the forefront of the deliberations of the UN’s Permanent Forum on Indigenous Issues (UNPFII) since its establishment on 28 July 2000. The Forum has made the case that Sustainable Development is implemented with the “full participation of indigenous peoples in development processes, taking into account the rights of indigenous peoples and the practices of their traditional knowledge”.
While the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) recognized the rights of indigenous peoples, however, many countries were slow to ratify and support this (2007) agreement. The United States was the last nation in the world to ratify UNDRIP, but declared its support for UNDRIP as aspirational and not legally binding.
Indigenous peoples have very little recourse to the powerful actors within the world system.
These “human” rights are not sufficiently protected.
Indigenous people continues to be deprived of their freedom and their property.
Civil Rights: Even though an international body of law formally recognising the cultures, ways of life, and the concepts that links indigenous peoples’ identities to their territories and their resources have been formed, the rights of indigenous peoples have largely not translated into national civil rights.
Civil Rights Challenge: The failure to enshrine internationally agreed healthcare rights into universal civil rights for every American woman (and women in many other countries), highlights the ongoing challenges of converting international agreements into civil rights.
- Lack of influence: It’s not sufficient to only call for submission of indigenous peoples to existing democratic processes. Their economic, social, and cultural ways of life, and their local focus, have constrained the rights of indigenous peoples and often kept them in a state of physical and institutional isolation.
- Isolation often results in a lack of knowledge of official languages and prevents greater participation in consultative and voting processes.
Lack of information: This marginalisation also affects the information available to dominant groups, whether democratic or autocratic) to ensure recognition of the political institutions, practices, and sensibilities of indigenous peoples.
Property Rights: Local communities and indigenous peoples are estimated to hold as much as 65 percent of the world’s land under collective tenure. However, most national governments formally recognize only a small fraction of these rights of indigenous peoples.
Proper Protection? Despite calls for increased conservation and improved climate action, national governments have accelerated large-scale land disposals for the purposes of commercial food and biofuels production.
- Importing nations affecting global deforestation, under intense industry lobbying, have struck watered down laws, narrowly focused on deforestation, while excluding other crucial ecosystems, like wetlands, grasslands, savannahs, shrublands, and peatlands from legislation.
- These laws will also not require improved standards to respect international human rights law as a requirement to place products on the EU market, instead relying on the laws in producing countries.
Even where minority indigenous peoples have convincingly secured the rights to resources, abuses have occurred.
- In the past, “generous” allocations of land were made, but they just so happened to be far away and in locations where these indigenous peoples had not been settled previously, breaking their cultural links with the land.
- The tenure of land rights remained tenuous, subject to minor increases and major eliminations, and an overall restriction of rights. Sometimes land previously awarded was even split for joint use between different groups of indigenous peoples (understandably leading to disputes).
Why is it so important? The lack of recognition of sovereignty of indigenous groups, and the incomplete translation of international human rights into civil rights remains a major challenge.
Collective Land Rights: The age-old process of appropriating land from collective ownership is in full swing, and increasingly States have declared large swaths of land as Terrestrial Protected Areas, forcing evictions. Where land has not yet been officially protected, it remains subject to overlapping and contradictory statutory and customary rights.
Collective Civil Rights: Most countries have no civil rights in place to conserve any collective ownership rights. Even progressive ESG metric providers (PRI, GRI) simply flunk corporations with collective ownership, regardless of their positive Environmental or Social or Sustainability initiatives.
Collective ownership: Many national state land laws do not deem lands held under community-based norms to amount to real property interests. Therefore they are unprotected.
These rights to collectively owned land are not entrenched to an equal degree as state-granted rights, most tenure only amounts to permissive occupancy and use rights.
Loopholes in civil laws, combined with poor or unjust procedures for application, and the scope of “financial lobbying” still leave collectively owned land occupied by indigenous peoples vulnerable to appropriation.
Restrictions on Rights
Historical precedent: In the little remaining natively-owned lands of the USA, for example, over time, different Administrations have unilaterally added segments, while others have withdrawn segments.
- Sometimes the land was given with mineral rights (often with more severe restrictions and costs than elsewhere), and at other times the state fully retained the mineral rights.
- The history of the Navajo Nation highlights challenges to achieve equitable outcomes on land resources when vested interests affecting government policy intersect the affairs of indigenous peoples owning land collectively.
Government owned: Although colonial state boundaries enclosed territories occupied by indigenous peoples without any consultation or conquest, in national law, these collectively owned lands are vested in the state, or even defined as the private property of the government.
Government controlled: Even when land is formally set aside (such as in the Amazon Basin) for the permanent use of native communities, the government remains the lawful authority over these lands and may dispose of them at will for purposes of commercial ranching, mining, and oil developments, and for the issue of timber concessions.
Impact: A 2020 paper by the Rights and Resources Initiative (RRI) held that up to 136 million people were displaced when formally “protecting” half of the areas currently protected and RRI believe that more than 300 million people continue to live in other targeted unprotected “key biodiversity areas,” which cover 9% of the planet.
Altruistic? Even ostensibly altruistic efforts (like protectionist conservation, carbon markets, carbon offsets, and nature-based solutions) can increase the pressure on the rights of indigenous peoples.
Previous research highlights that if we consider conservation by the exclusion of people from approximately 75 percent of the forests of the developing world, the number of current stewards protecting global biodiversity under threat of displacement increases to 2.2 billion people.
Goal of Current Solutions?
Recognizing and implementing indigenous rights to territories and resources are often perceived to conflict with State and Private Sector interests. On the face of it, organisations often promote conservation without pushing for “protection by exclusion”, calling for partnership and inputs from local communities, and intelligent design, but the situation is often masked by a thin veneer of professed respectability.
The colonial practice of moneyed groups backing powerful minority local elites to help secure favourable outcomes for investors continues. And while it is at times quite obvious, it can also be disguised as nature-based solutions.
The International Indigenous Peoples’ Forum on Climate Change (IPPFCC) is demanding that new climate agreements dealing with mitigation or adaptation adopt UNDRIP, and include “free prior and informed consent” about any nature-based solutions offered over lands where indigenous communities live.
But the shaky legal ground of UNDRIP, makes it easy for interested parties to circumvent equitable outcomes.
The key steps needed are for land and resources rights to fully vest in indigenous peoples, for partners of their choice to be appointed to help with technical capacity and for more protection to be afforded to environmental activists highlighting controversial activities.
Investors and their agent investment managers should be held accountable… but no one should accept standard setters that penalise or exclude collective ownership!
Current norms do not function properly across all people. These norms are often not even representative of the majority, or even fully understood by people natively speaking more than 7,200 languages globally, never mind within the larger language groups.
It is time we question whether the standard setters creating new rules are actually addressing the challenges, or are they just perpetuating the inequalities of the past. Are these norms more than just a product of the unequal hierarchies of the modern world-system, and is it serving everyone, or just sustaining those that have power?
How do we create a private ownership system that protects the rights of indigenous peoples?
EDITOR: This post (from 22 August 2022) contains Updated Content.