1. INTRODUCTION
Today, Asia has been witnessing a variety of military conflicts and indigenous struggles for independence in ancestral lands in multiple regions. The roots of these conflicts can be traced back to the history of European colonialism and imperial ventures in Asia. In December 2017, more than 600,000 indigenous Rohingya people in the Rakhine State of Myanmar fled to Bangladesh to avoid the “ethnic cleansing” and genocide carried out by Myanmar’s armed forces.Footnote 1 Ethnic conflicts originated in the Arakan State in British-controlled Bengal in the nineteenth century, when British policies led to long-term religious animosity between the Rakhine Buddhist majority and the Rohingya Muslim minority, who have long been persecuted by the government.Footnote 2
In May 2017, President Rodrigo Duterte declared martial law in Mindanao, the second largest island in the Philippines, and dispatched his security forces to quell radical Muslim elements of indigenous Moro populations who have been involved in their own epic de-colonial struggles for independence for the last four centuries.Footnote 3 In September, West Papua’s petition for independence, containing 1.8 million signatures, which was officially banned by the Indonesian government, was “smuggled” out of West Papua in the island of New Guinea and submitted to the UN’s decolonization committee that has been monitoring the progress of former colonies toward independence.Footnote 4 West Papua has been militarily occupied since 1963 by Indonesian state security forces that have been accused of gross human rights violations and violent suppression of the region’s independent movement.Footnote 5
In India, Kashmir’s indigenous struggle for independence continues today despite the extreme violence of the Indian police and paramilitary forces in the Kashmir Valley of the Indian-administered Jammu and Kashmir. The 1947 British-imposed border divided Kashmir into India and Pakistan, prompting the indigenous population’s struggles for the right to self-determination.Footnote 6 In Afghanistan, indigenous Pashtuns crossing the state border were labelled “terrorists” and have been subjected to US drone strikes and Special Forces attacks. The regional conflict originated in the 1896 British-imposed “Durand Line” on the Pashtunitan region, which severed the indigenous people into Afghanistan and Pakistan state systems, while the Pashtuns and the Afghan government continue to delegitimize the externally imposed, “artificially” drawn border.Footnote 7
In September, over 90% of Iraqi Kurds voted in favour of the independent Iraqi Kurdistan state, trying to secede from the Republic of Iraq, which has been imposing genocidal policies against Kurds, including the so-called Anfal genocidal campaign in northern Iraq between 1986 and 1988 that killed tens of thousands of Kurds.Footnote 8 The homeland of indigenous Kurds was partitioned immediately after the First World War by the Britain- and French-led Mandate System, and their severed homelands were integrated into the present-day borders of Iraq, Iran, Syria, and Turkey.Footnote 9
In December, an independence movement in Okinawa, Japan, re-ignited after a former US Marine was sentenced to life in prison for raping and killing a 20-year-old Okinawa woman.Footnote 10 US service members’ sexual violence against Okinawan women has a long history, dating back to 1945, when the US militarily occupied the island, following the “Battle of Okinawa” that killed more than one-quarter of the Okinawan people.Footnote 11 Okinawa had been a vibrant independent kingdom and prosperous international trading post in the middle of the East China Sea until Japan’s forceful annexation of the island in 1879. The island now houses nearly three-quarters of all US military bases in Japan.Footnote 12 Two weeks after the life sentence was given to a former soldier, a window from a US Marine helicopter crashed onto a school playground at Futenma Daini Elementary School, injuring a child.Footnote 13 Three months prior to this incident, another US helicopter crashed into Takae in Higashi Village, following yet another crash of an MV-22 Osprey in Nago City in December 2016.Footnote 14
In the midst of these continuous struggles of indigenous people for the right to self-determination and political independence in multiple regions and countries in Asia, a large group of socio-legal researchers and international scholars specialized in Asia gathered at the second Asian Law and Society Association (ALSA) conference at the National Chiao Tung University, Hsinchu, Taiwan, in December 2017. Many presenters and conference participants came from struggling regions, countries, and neighbouring states, including the Philippines, Afghanistan, India, Iran, Indonesia, Malaysia, Thailand, Vietnam, Sri Lanka, Hong Kong, and Macau. Scholars specialized in Asian law and judicial systems from the US, Japan, Canada, Australia, Germany, South Korea, China, Taiwan, Singapore, and other countries around the globe also participated in the conference.
As the incoming ALSA president, I wish to offer a new perspective to understand the nature of pandemic indigenous people’s struggles for independence in Asia, to examine sociopolitical and historical roots of regional conflicts around many Asian peripheries, and to explore the contour of the social and political path for the recognition of indigenous rights for political sovereignty and independence under international law. This new theoretical perspective is called the Fourth World Approaches to International Law (FWAIL) and the “Indigenous Law” session at the second ALSA conference in Taiwan critically examined the viability of this new approach to international law. Law Professor Ric Powell of Nihon University, Japan, agreed to serve as discussant on the panel, and Law Professor Chulwoo Lee of Yonsei University, South Korea, also agreed to participate in the session and presented the paper “The Many Meanings of the Decoupling of the Nation and the State.”
Professor Lee’s paper critically examined the efficacy of FWAIL, which I first developed and proposed at the Inaugural ALSA Conference in Singapore in 2016.Footnote 15 The term the “Fourth World,” which is an extension of the three-world model (i.e. the First, Second, and Third World classification), typically refers to the community of indigenous people descended from a common nation of aboriginal populations who have been deprived of their own territory and political rights, such as many indigenous people currently struggling for their independence in multiple regions in Asia.
2. THE FOURTH WORLD AND INTERNATIONAL LAW
The Fourth World scholarship was developed and proposed at the ALSA conference in order to overcome the shortcomings of, and challenge conventional wisdom embedded in, now the familiar Third World Approaches to International Law (TWAIL), through taking into account the cultural and ideological diversity of Fourth World populations that have been trapped within, and partitioned across, the state system. The TWAIL approach was originally offered by Antonio Anghie, B. S. Chimni, and other critical scholars from Asia, Africa, and other regions, and examined the predatory role of international law against the interests and aspirations of the Third World countries.Footnote 16
As the FWAIL approach was first presented and discussed in the inaugural ALSA conference held in Singapore in Southeast Asia in 2016, the similar inspiration for the TWAIL scholarship may have also originated in Southeast Asia in April 1955, when the first anti- and decolonial Third World conference was held in Bandung, the capital of West Java Province in Indonesia.Footnote 17 Gathered there were representatives from 29 governments of Asian and African Third World countries, to discuss peace, the possibility of inter-continental coalitions against the West, and the purported economic improvement of the impoverished Third World populations in the Global South. TWAIL scholars substantiated that international law promoted political subservience and facilitated further economic exploitation of the Third World by Euro-American powers through the predatory legal mechanisms and international institutions they helped create and control. This predatory international law and its implementation were thus considered two of the significant causes of growing internal conflicts in the Third World, including many countries in Asia.
The Fourth World perspective was offered in order to supplement the TWAIL scholarship, by providing critical perspectives in investigating the predatory role of international law that perpetuates the exploitation of the Third World, as well as Fourth World, indigenous communities through the state government of the Third World country acting as the intermediary agency. The term “the Fourth World” was first coined by George Manuel in his 1974 work, The Fourth World: An Indian Reality. As Chief of the National Indian Brotherhood of Canada, he stated:
The Fourth World is a vision of the future history of North America and of the Indian people. … The idea of the Fourth World provides the seeds of a viable philosophy and strategy of resistance to the dominant model of globalization; it pointed towards the need for the replacement of neo-liberal economics with forms of globalization more attuned to the natural economy of inter-human and cross-species relationships.Footnote 18
Another prominent American indigenous scholar, Ward Churchill, equates the Fourth World with indigenous people, whom he calls “indigenists” and who descended from a country’s aboriginal population and are today deprived of their own territory and environment.Footnote 19 According to another prominent indigenous scholar and activist, Winona LaDuke, the Fourth World may be considered as “the Host [and Original] World upon which the First, Second, and Third Worlds all sit at the present time.”Footnote 20 According to the three-world model, the First World consists of a country that has assigned itself an identity of capitalist development, while the Second World embodies the politics that have pursued socialist or Communist development, and the Third World, which is the “undeveloped and underdeveloped” area located mostly in Asia and other parts of the Global South, has been largely created by European imperial ventures and maintained as client states by both the First and Second World countries. The Fourth World scholarship posits that all state systems in the First, Second, and Third Worlds continue to engage in an ongoing occupation and exploitation of Fourth World people, their land, and resources; denial of indigenous government and political rights to independence; conscious devaluation of indigenous tradition, language, and ideologies in relation to the culture of external imposition by the colonizer; and usurpation of indigenous knowledge and natural resources, resulting in detriment to the welfare of aboriginal people, as well as other animals, plants, and other species that habituate in indigenous lands, and to the natural environment and future survival of the Fourth World.
South African Fourth World scholar Richard Griggs argues that “the Fourth World is also composed of ‘Nations [that have been] forcefully incorporated into states which maintain a distinct political culture but are … unrecognized [by international law]’.”Footnote 21 Griggs estimates that there are from 6,000 to 9,000 Fourth World nations that endure distinct political cultures within boundaries of Member States recognized by the UN today.Footnote 22 He adds that approximately 110 culturally and socially independent nations currently exist in Europe alone, many of which are not politically recognized by their own national government or by international organizations, including the UN.Footnote 23 Griggs evaluates that Fourth World nations represent one-third of the world’s population, whose members and descendants continue to maintain and share a distinct culture, tradition, and ideology within the state system of government that claims legal possession of their territories.Footnote 24
By examining colonial experiences of indigenous people and their struggles in Asian peripheries such as Kashmir, Pashtunistan, Kurdistan, Rakhine, West Papua, Okinawa, and other communities that were forcefully integrated into the respective state systems, the Fourth World perspective provides a critical theoretical approach to understanding culturally and historically distinct indigenous nations that have been subordinated to predatory state policies and exploitive international laws. Further, the Fourth World scholarship tries to explore an emancipatory path towards attainment of political independence and sovereignty. The Fourth World approach also applies to the analysis of other indigenous nations that were equally encapsulated within and partitioned across the state system in Africa, Europe, and North and Latin America.
3. FWAIL
As indigenous scholar and activist Winona LaDuke correctly pointed out, indigenous communities long existed as the host and “original” nation prior to the advent of the state system that was imposed on indigenous host worlds through European’s global colonial ventures in the post-Westphalian era. FWAIL is the application of the Fourth World scholarship to the examination of the role and impact of international law upon indigenous populations.
First, FWAIL proposes a clear differentiation of the concepts of the nation and of the state. FWAIL defines the “nation” as the collective of people who are sufficiently conscious of their shared ancestral value of traditional, cultural, historical, and psychological bonds, not as the political apex of the government and its authoritarian bureaucracy. The term “nation” can thus be used interchangeably with the Fourth World or indigenous community, in which people share common cultural values and sociopsychological bonds. The “state” is distinctly separate from the “nation,” and has often been created through war and violence. Since there is no common cultural or traditional enterprise to bind people together, the state must be a “legal construction” and is also defined as a self-justified collective entity through its own “self-serving” judicial enterprise. The state is also a territorially claimed entity with the clear delineation of borders that are secured and policed by centralized government and bureaucratic authority. Today, the state has succeeded in establishing legal rights and political authority over and above those of the nation. The UN thus only recognizes the state in its membership, not the nation, and the “nation” may only earn its membership in the UN with the approval of both the Security Council and the General Assembly, which is also the collective of the “Member States,” not member nations. Thus, Kashmir, Pashtunistan, or Okinawa, or any of the other indigenous communities in Asia, have been deprived of the right to claim UN membership under international law.
Second, FWAIL assumes that the state, not nation, is still the principal subject and player in the realm of international law. However, the Fourth World communities are not immune to the impact of international law, as indigenous people may often be the most victimized group in relation to international law. For example, neoliberal programmes imposed by the First World countries have had the most devastating impact on indigenous people and communities, including the loss of their living spaces, territories, and natural resources.Footnote 25 FWAIL thus offers an intellectual space through which the lived experience of indigenous communities can be expressed through their resistance, opposition, and struggles against the predatory impact of international law. FWAIL further seeks to give active voice to those who have been victimized by predatory policies of the state system and international law, and attempts to analyze the development of international law and predatory legal norms through the history of colonialism, past and contemporary experiences of host and original communities, and indigenous knowledge, so as to build a culture of resistance and opposition to the Euro-American hegemonic domination.
Third, FWAIL is not proposed in the spirit of replacing the TWAIL scholarship, but with the intent to enrich discussions by including the indigenous people and communities whose rights and struggles for autonomy and political independence have long been ignored in the analysis of international law. For example, TWAIL does not fully elaborate the multiplicity of subnation communities and aboriginal peoples that were first subjected to Euro-American colonization, not only in today’s Third World, but also in the First World countries in the Global North. The Fourth World nations suffer from today’s system of state structures that have continued to impose the partition and encapsulation of the original communities within their procrustean borders. For instance, nearly 400 “legally” recognized indigenous nations exist within and around the 48 contiguous US state borders because of their signed and ratified treaties with the US government. These multitudes of Fourth World communities in the US have continued to demand legal recognition of their “nationhood” status under international law, while trying to resist the US government’s genocidal policies and mass violence directed against them.Footnote 26
Fourth, FWAIL argues that the political and economic subordination of the Fourth World has been facilitated not only by international law, but also by the law of the domestic government that, in many instances, has played an even more significant role in the exploitation and marginalization of indigenous people and communities. TWAIL overlooks the oppressive role played by domestic governments and their policies against the interests of the welfare of indigenous and aboriginal communities within their national borders. TWAIL remains critical of the predatory role of the international organizations, including multinational corporations, the World Trade Organization (WTO), World Bank (WB), International Monetary Fund (IMF), and other supranational entities that impose neoliberal policies on the Third World and maintain hegemonic Euro-American domination. TWAIL, however, has failed to recognize that these neoliberal policies have not been imposed equally across race, regional, or cultural groups in the Third World countries. TWAIL thus fails to explain how neoliberal policies imposed by international organizations influence the ways in which domestic policies are formulated and most often carried out with detriment to the welfare of indigenous people and their communities. The victims of such neoliberal policies are likely to be politically weak and marginalized indigenous communities. For example, while uranium can be found everywhere on Earth, nearly 70% of uranium resources are located in the lands inhabited by indigenous people in Asia, as well as in Australia, and North and South America.Footnote 27 As a result, indigenous people have been suffering the devastating multi-generational impacts of environmental toxins and deadly contaminants in their communities.Footnote 28
Fifth, FWAIL is critical of the TWAIL scholarship, which is based on the forced homogeneity of political voices across domestic groups in order to develop a common language of opposition to First World hegemony. As a result, the co-operation and alliance-building among Third World countries has the possibility of silencing the dissident voices of marginalized indigenous communities. For instance, the 1955 anti-colonial Bandung Conference in Indonesia was organized by Burma (today’s Myanmar), Pakistan, Ceylon (today’s Sri Lanka), Indonesia, and India. While these countries have multitudes of indigenous populations within their national borders, the ten-point declaration of the conference failed to recognize the rights of indigenous people and communities. The rhetoric of united consensus among the Third World countries thus effectively eradicates the indigenous people’s history of struggles and opposition to colonial policies imposed by the government of the Third World.
Sixth, FWAIL seeks to examine the role of international law in relation to the indigenous nations’ rights to land. As Malcolm X proclaimed in his support of Black Nationalism, the right to land forms the basis of any independent movement for freedom, justice, and equality.Footnote 29 That is, the land in the form of private property must be scrutinized in the framework of international law and in relation to how it impacts indigenous communities.Footnote 30 While the Fourth World is legally “disallowed” from participating in a decision-making process related to political affairs at an international level, FWAIL seeks to create a collective alliance across the indigenous communities against the further privatization of their land, natural environment, and resources.
Seventh, as related to the above, in an effort to create a global system of governance suited to the welfare and wellbeing of the Fourth World people and their communities, FWAIL seeks to develop effective tactics of resistance and opposition by the Fourth World, in possible co-operation with the state government against predatory international law created by extra-judicial institutions of the First World. Today, international law has begun to displace the national legal system by creating an international mechanism and supranational institutions whose decisions override the law and policies made by a country’s government and its judiciary. For example, international economic law, especially investor-state dispute settlements (ISDS), has become a very effective instrument of multinational corporations that grants them the right to use international dispute-settlement proceedings against the Third World government. While FWAIL argues that the predatory state system and bureaucratic structure must eventually be dissolved, the powerful presence of international corporations and supranational organizations such as the WTO, WB, and IMF requires a powerful state to resist their predation. Possible collaboration between indigenous communities and the state government may necessarily be pursued in order to fight the hegemonic power of international organizations.
Eighth, FWAIL posits that international law must be created in order to ensure the biodiversity of natural environment, for most indigenous communities are dependent on local biological resources available within their national territories. As the Fourth World evolved, their lifestyles and living habits generally adapted to sustaining environments and conserving biological diversity, and the vast majority of today’s Fourth World countries still remain centres of surviving biological diversity and ecological variety. At the same time, the environment supervised by the state has suffered destructive deforestation, pollution, massive freshwater deletion, desertification, and a large-scale reduction of biological diversity. The Original Host World once had the knowledge that contained the culture, values, ideology, and tradition to maintain and protect biodiversity in their environment. In the process of being uprooted from the homeland and integrated into the state, the Fourth World experience and knowledge have been taken away and often lost.
Ninth, FWAIL seeks to create an international legal framework that must recognize the legal status of the nation in such a way that the Fourth World will be able to participate meaningfully in the formulation of national and international policies that affect their own communities. FWAIL recognizes that the optimum way to protect the world’s surviving biodiversity and natural environment is to support the nations’ rights to land, indigenous knowledge, tradition, culture, and rights to sovereignty and self-determination. Since the indigenous communities are part of occupied territories within the state system, they must be allowed to exercise the right to self-determination to secure their land and protect their territories and living environment. This self-determination must be achieved through the use of economic, political, and legal means and strategies because it may never be handed to the nation through the “goodwill” of the state or its institutions. The indigenous nations may first achieve self-rule within their own territories and seek out political arrangement with the state through negotiation based on active resistance, struggles, challenges, opposition, and any other means necessary to achieve their objectives.
4. CONCLUSION
Many indigenous struggles continue in various parts of Asia, from East to Southwest regions. In the middle of these conflicts in multiple Asian peripheries, the second and successful ALSA conference was held in Hsinchu, Taiwan, in December 2017, and nearly 300 scholars from many countries and continents participated and presented their research.
One of the sessions I helped to organize, and in which I participated in discussion, tried to examine the root cause of many of these Asian conflicts, tracing the common historical root to European colonialism and imperial ventures in the regions. International law then became primarily an instrument though which the political and economic subordination of Asian countries, many of which were former European colonies, was enforced and perpetuated. FWAIL scholarship was then offered to examine the predatory role and function of international law, not solely from the perspective of the Third World countries, but from the lens of the Fourth World people and communities from the First to Third World countries. FWAIL posits that the predatory impacts of international law are not shared equally across ethnic, religious, and cultural groups within the state system, but are concentrated among the most politically weak and marginalized indigenous populations. FWAIL was also offered to give an active voice to indigenous people who have been victimized by predatory policies of the state system and international law, and to build a culture of collective resistance and opposition to hegemonic Euro-American domination in the region. FWAIL further provides the framework to seek self-determination through activism, organizing, and negotiations with the state, in addition to the use of domestic law and international law. Furthermore, FWAIL was offered to give an alternative vision for the preservation of biodiversity and natural environment necessary for the survival of human race in the coming generations. In the future, I expect more lively discussions of the model of FWAIL to deepen understanding of the predatory impact of international law on the most fragile groups of indigenous populations in multiple regions in Asia.
