THE LAW-SPACETIME-JUSTICE NEXUS:

INTERNATIONAL BOUNDARY DISPUTES AND

INDIGENOUS TERRITORIAL CLAIMS

Michelle Katherine Braiden

Department of Geography

McGill University

Montreal, Quebec, Canada

November 2019

A thesis submitted to McGill University in partial fulfillment of the requirements of the degree

of

Doctor of Philosophy in Geography

© Michelle Katherine Braiden 2019

ABSTRACT

This dissertation analyzes international law, the International Court of Justice (ICJ) and indigenous territorial claims from the perspective of legal geography, a field of study that investigates the mutually constitutive relationship between law, space and power in society. I use the term “international law-spacetime-justice nexus” to signify that the analysis is concerned with the spatiotemporal foundations of international law and their relationship with concepts of international political justice. The dissertation analyzes matters pertaining to the spatial and structural (in)justices associated with the international legal principle of uti possidetis, a doctrine that holds that decolonizing or seceding states are entitled to retain the boundaries of the previous colonial or state power. The concept of spatiotemporalities is used to analyze questions about how the ICJ produces and reproduces the spatial hierarchies and structural injustices associated with colonial legalism in contemporary contexts. The dissertation also examines the theoretical foundations of indigenous self-determination and self-government as articulated in the United Nations Declaration of the Rights of Indigenous

Peoples (2007). It counters the statist spatial paradigm of traditional international border disputes by examining indigenous territorial claims based on historical entitlement, remedial claims such as corrective justice and treaty violations, as well as non-remedial claims based on cultural integrity arguments. These themes are explored in three case studies, including the

1992 boundary dispute between El Salvador and Honduras, the 1994 dispute case between

Libya and Chad, and the 1995 response by the Grand Council of Cree of northern Quebec and

James Bay to the Quebec government’s proposals for separation.

ii RÉSUMÉ

Ce mémoire étudie le droit international, la Cour Internationale de Justice (CIJ) et les revendications territoriales indigènes envisagées sous l'angle de la géographie légale, un champ d'études qui explore les relations entre la loi, l'espace et le pouvoir dans la société. J'utilise le terme "nexus international loi-espace temps-justice" pour signifier que l'analyse se concentre sur les fondations spatiotemporelles du droit international et leurs relations avec les concepts de justice politique internationale. Le mémoire étudie les questions des (in)justices spatiales et structurelles liées au principe légal international du uti possidetis, une doctrine qui affirme que les états décolonisés ou en sécession ont le droit de garder les frontières de l'état colonial qui précédait. Le concept de spatiotemporalités est utilisé pour analyser la manière dont la CIJ produit et reproduit les hiérarchies spatiales et les injustices structurelles liées au colonialisme juridique à l'époque contemporaine. Le mémoire examine aussi les fondations théoriques de l'auto-détermination et de l'auto-gouvernement indigène tels qu'ils sont définis dans le texte

United Nations Declaration of the Rights of Indigenous Peoples (2007) (Déclaration des Nations-

Unies sur les droits des peuples indigènes). Il s'oppose au paradigme spatial étatique des conflits de frontières traditionnels, en examinant les revendications territoriales indigènes basées sur les droits historiques, les mesures de réparation telles que la justice correctrice et les violations des traités, et aussi les revendications non liées aux réparations mais basées sur les arguments d'intégrité culturelle. Ces thèmes sont explorés dans trois études de cas, notamment le conflit de frontière de 1992 entre le Salvador et le Honduras, le conflit de 1994 entre la Lybie et le Tchad, et la réponse de 1995 du Grand Conseil des Cris du Québec du Nord et de James Bay aux propositions du gouvernement du Québec pour une séparation.

iii ACKNOWLEDGEMENTS

This dissertation is dedicated to my grandparents, Bert Braiden and Edna (Hall) Braiden.

I would like to thank my friends and family in Montreal, Buenos Aires, Calgary, Edmonton, Vancouver and Victoria for their love, support and especially their patience. I would also like to thank my colleagues at Dawson College in Montreal, Quebec for their encouragement over the past few years.

I am especially grateful that I had such a wonderful advisor, Professor Ben Forest. I would like to thank Professor Catherine Lu and Professor Jon Unruh for reading earlier versions of my dissertation. I would also like to thank my examiners, Professors Christina Scholz, George Wenzel, and Daniel Béland for their comments and criticisms.

iv

TABLE OF CONTENTS ABSTRACT ...... ii RÉSUMÉ ...... iii ACKNOWLEDGEMENTS ...... iv CHAPTER ONE: INTERNATIONAL BOUNDARY DISPUTES AND INDIGENOUS TERRITORIAL CLAIMS ...... 1 1.1 Introduction ...... 1 1.2 Research questions ...... 11 1.3 Legal geography: Transforming the ‘law-space-power nexus’ ...... 14 1.4 Context: International law and the doctrine of uti possidetis ...... 16 1.5 Methods and methodologies: Case studies ...... 20 1.6 Organization of the Argument ...... 23 1.7 Conclusion ...... 27 CHAPTER TWO: TRANSFORMING LEGAL GEOGRAPHY...... 29 2.1 Introduction ...... 29 2.2 Theoretical framework: Legal geography ...... 31 2.2.1 Critical geography and the spatialities of state territory ...... 36 2.2.2 Traditional and critical border and boundary studies ...... 38 2.3 Time and temporalities: Transforming the law-space-power nexus ...... 41 2.3.1 Latin America, uti possidetis, and the critical date of independence ...... 42 2.3.2 The scramble for Africa, African decolonization, and the principle of stability ...... 45 2.4 The International Court of Justice, structural injustice, and colonial legalism ...... 48 2.4.1 Intertemporal law, precedent and temporal inertia ...... 53 2.5 Spatial justice, historical and structural injustice ...... 55 2.6 Conclusion ...... 58 CHAPTER THREE: THEORETICAL FOUNDATIONS OF INDIGENOUS TERRITORIAL CLAIMS ...... 60 3.1 Introduction ...... 60 3.2 Historical entitlement arguments for indigenous territorial claims ...... 61 3.2.1 Time immemorial ...... 63 3.3 Remedial claims: Corrective justice and treaty violations ...... 66 3.3.1 Corrective justice...... 68 3.3.2 Treaties and treaty violations ...... 70 3.4 Nonremedial territorial claims: Cultural integrity arguments ...... 75 3.5 UNDRIP: Self-determination and self-government ...... 77

v 3.5.1 UNDRIP Articles: Land, territory and borders ...... 79 3.6 Conclusion ...... 83 CHAPTER FOUR: SPATIAL HIERARCHIES, STRUCTURAL INJUSTICE AND THE 1992 LAND, ISLAND AND MARITIME FRONTIER DISPUTE (NICARAGUA INTERVENING) ...... 86 4.1 Introduction ...... 86 4.2 Spatial hierarchies: Uti possidetis de jure and the titulos ejidales ...... 88 4.3 Tecpanguisir Mountain: The colonial past and present ...... 91 4.4 Spatial hierarchy and structural injustice: The ICJ judgment ...... 96 4.5 Drawing a better line: Transboundary peoples ...... 100 4.6 Conclusion ...... 102 CHAPTER FIVE: ARTIFICAL BOUNDARIES, THE TOUBOU TRIBES AND THE AOUZOU STRIP .... 105 5.1 Introduction ...... 105 5.2 Artificial boundaries, the “scramble for Africa,” and “the colonial heritage” ...... 106 5.3 The Libya Memorial and the Toubou tribes ...... 112 5.4 The ICJ, Chad, and the doctrine of uti possidetis de jure ...... 117 5.5 The dissenting opinion of Judge Sette-Camara ...... 120 5.6 Conclusion ...... 124 CHAPTER SIX: UTI POSSIDETIS, QUEBEC SOVEREIGNTY, AND THE JAMES BAY CREE ...... 126 6.1 Introduction ...... 126 6.2 Uti possidetis, the Cree, and Quebec independence ...... 129 6.3 Spatiotemporalities: Federal boundary extensions and the critical date ...... 132 6.4 Time immemorial and the Quebec settler-state ...... 135 6.5 The spatialities of self-determination: Peoples, nations and states ...... 138 6.6 Conclusion ...... 143 CHAPTER SEVEN: CONCLUSION ...... 146 Bibliography ...... 160

vi CHAPTER ONE: INTERNATIONAL BOUNDARY DISPUTES AND INDIGENOUS TERRITORIAL CLAIMS

1.1 Introduction

On Monday, April 15th, 1991, at 10 am at the International Court of Justice’s Peace

Palace in The Hague, the Ambassador of Honduras, Dr. Ramón Valladares Soto, opened the oral proceedings of the boundary dispute case with El Salvador. Valladares Soto was addressing the

Chamber of the International Court of Justice (ICJ or Court), which that morning was composed of Judge Sette-Camara (President of the Chamber), Judge Sir Robert Jennings (President of the

Court), Judge Oda (Vice-president of the Court), as well as two ad hoc judges, Dr. Valticos and

Dr. Torres Bernárdez, elected to the Chamber by El Salvador and Honduras respectively. The foreign ministers of the two countries were also in the courtroom that day, as were a cadre of international lawyers and law professors hailing from elite Western universities, such as

Cambridge, Collège de France, and the Universidad Autónoma de Madrid.

Valladares Soto began his introductory speech by quoting the first lines of the Mayan creation story in the Popul Vuh: “First, the land, the mountains and the valleys were made; the currents of waters were divided, the streams were running freely between the hills, and the waters were separated when the mountains appeared.”1 The Ambassador then made the point that El Salvador and Honduras were like “brothers” in that they shared the common history, geography, religion and language of Central America. The members of the Chamber, by

1 Case concerning the Land, Island and Maritime Frontier Dispute (Honduras v El Salvador: Nicaragua Intervening), Oral proceedings, 15 April 1991, ICJ Verbatim record, p. 16.

1 contrast, would have to make considerable effort when discussing and passing judgment on

“the countless hills as well as the islands, the rivers and the waters which have flown freely since creation.”2 Valladares Soto outlined the difficulties that would be faced by the Court in the case ahead. First, the toponymy. The Mayans (“men of corn”) had given “names to the places in the Indian languages… [and] these names, not always easy to pronounce, still persist.”3 The Ambassador continued:

The Government of Honduras is grateful to the Court for making this effort of

imagination. For in order to determine the rights of the Parties on the r of 15

September 1821, you will have to enter, from different legal cultures, into the

world of our men and our lands. And we are certain that when examining the

functioning of the Indian communities or of the authorities of the Spanish Crown,

the boundaries of the land which were “purchased” from the Crown, and the

borders of the ancient Provinces, the Members of the Chamber of the Court will

do so not only with the vigor and impartiality of Judges, but also with the other

lands in the Colonial past and in the period just after independence.4

The second difficulty for the Chamber concerned legal pluralism. Valladares Soto was positing that a “world of difference” exists between ancient indigenous legal systems, the property regimes under Spanish colonial rule, and the legal doctrines proffered by modern international

2 Case concerning the Land, Island and Maritime Frontier Dispute (Honduras v El Salvador: Nicaragua Intervening), Oral proceedings, 15 April 1991, ICJ Verbatim record, p. 16. 3 Case concerning the Land, Island and Maritime Frontier Dispute (Honduras v El Salvador: Nicaragua Intervening), Oral proceedings, 15 April 1991, ICJ Verbatim record, p. 16. 4 Case concerning the Land, Island and Maritime Frontier Dispute (Honduras v El Salvador: Nicaragua Intervening), Oral proceedings, 15 April 1991, ICJ Verbatim record, p. 16.

2 law. The third difficulty concerned the geographical imagination, with the Ambassador imploring the ICJ Chamber to examine the case not only impartially, but imaginatively, as was necessary for understanding the lands and lives of the Salvadorian and Honduran past.5

Ambassador Valladares Soto made repeated reference in his opening speech to the indigenous peoples of Central America and to the fact that the lands at the centre of the ICJ boundary dispute case were their ancestral territories. It was understood, however, that the ICJ

Chamber was not there to discuss the plight of the indigenous peoples living along the

Salvadorian-Honduran borderlands. Rather, the Chamber had been convened with the purpose of awarding the territory to one or the other of the two petitioning states. As successor states of the Spanish Empire, El Salvador and Honduras were asking the Court to delimit six sections of its shared international land boundary in accordance with the legal principle of uti possidetis de jure (“as you possess, thus may you possess”). The doctrine first emerged in Latin America as a way of transferring territorial title from the Spanish Empire to its provinces and involved transforming internal administrative boundaries into international frontiers.

The 1994 boundary case between Libya and Chad opened in a similar fashion. Three of the judges who sat for the ICJ Chamber in the El Salvador/Honduras case were also present for the dispute between Libya and Chad: Judge Sir Robert Jennings (President of the Court); Judge Oda

(Vice-President); and Judge Sette-Camara, and again the audience was made up of law professors and lawyers from elite Western universities. This time, the Libyan Ambassador

Abudulati Ibrahim El-Obeidi began the oral proceedings by referring to the indigenous Toubou

5 Case concerning the Land, Island and Maritime Frontier Dispute (Honduras v El Salvador: Nicaragua Intervening), Oral proceedings, 15 April 1991, ICJ Verbatim record, p. 16.

3 tribes of the Aouzou Strip in the Sahara Desert. The Libyan ambassador El-Obeidi began by remarking that territories under dispute by Libya and Chad were historically those of the

Toubou tribe, who had “undisputed title” to the Aouzou Strip and its surrounding territories prior to the arrival of the French colonial state in 1900. The Aouzou Strip, according to the

Ambassador, was not (and had never been) terra nullius, or “empty land,” from the perspective of modern international law. The Toubou tribes of the Sahara had been occupying the Aouzou

Strip since time immemorial. Prior to the colonization of the African continent by the European powers, according to the Ambassador, the Toubou were also recognized as having their own social structure, legal system, procedures for dispute settlement, religion, schools, and commercial links.6

The Libyan Ambassador was arguing that the Toubou were Libyan nationals, living on what ought to be recognized as Libyan land. The original title of the nomadic Toubou tribes had been transferred to the Ottoman Empire via the Senoussi religious order, and then to Italy after

World War I. El-Obeidi’s argument was that the territorial title ought to be transferred once again, this time to the Great Socialist People’s Libyan Arab Jamahirlya. As with the 1991 El

Salvador/Honduras dispute, the 1994 Libya/Chad case acknowledged that the lands under dispute were the traditional territories of indigenous communities. As in the El

Salvador/Honduras dispute, the state parties were petitioning the ICJ to delimit boundary lines that passed directly through indigenous lands, in some cases dividing communities across international borders. In both cases, this was undertaken without consulting the indigenous

6 Case Concerning the Territorial Dispute (Libyan Arab Jamahiriya/Chad) (1994). Oral proceedings 1. ICJ Reps, p. 6.

4 peoples who were inhabiting the disputed territories. Neither the Lenca people of Central

America nor the Toubou of the Sahara were asked to appear at the Hague, nor were they given the opportunity to present their own territorial claims. This is because the ICJ does not accept submissions from peoples who are not already organized into states. As a consequence, indigenous peoples and their representatives have no legal standing at the ICJ and are unable to present their claims directly to the Court.

At this same time, in the early 1990s, the Grand Council of James Bay Cree in Northern

Quebec was putting its case together against the government of Quebec. The Parti Quebecois, then under the leadership of Jacques Parizeau, had declared that upon separation of Quebec from the rest of Canada, the new state of Quebec would be entitled to retain its provincial borders. The provincial borders were to be transformed into international boundaries under the operation of uti possidetis de jure. As a consequence, the Cree lands of the James Bay were to be transferred from the Canadian federal state and incorporated into the newly sovereign

Quebec state. The Cree responded to the Quebec government by publishing Sovereign Injustice:

Forcible Inclusion of the James Bay Cree Territory into a Sovereign Quebec (1995), a document that demonstrates how dominant discourses with respect to uti possidetis de jure can be countered by indigenous territorial claims that reference notions of first priority, time immemorial, and corrective justice, as well as appealing to arguments based on cultural integrity and notions of political self-determination.

This dissertation examines the International Court of Justice, international boundary disputes, and the Grand Council of Cree’s indigenous territorial claims from the perspective of legal geography, a research paradigm that critically assesses the mutually constitutive

5 relationship between law, space and society. The International Court of Justice (ICJ) is the primary judicial organ of the United Nations (UN) and acts as a third-party mediator in the settlement of boundary disputes between states. The ICJ (the Court) is concerned with legal matters pertaining to sovereignty, land and maritime boundaries, natural resources, human rights, treaty violations, and treaty interpretation. The Court adjudicates contentious cases that are submitted to it voluntarily by states, and delivers advisory opinions on legal questions referred to it by the specialized agencies of the United Nations.7 The ICJ was created in 1945 as a successor to the Permanent Court of International Justice (PCIJ) and has jurisdiction over the governments of UN member-states. It is a statist institution with a mandate to settle disputes between states; that is, the ICJ does not accept submissions from peoples that are not organized into states.

Border scholars have traditionally divided international boundary disputes into positional disputes, territorial disputes, functional disputes, and resources development disputes (Prescott and Triggs, 2008). Positional disputes between states can often be traced back to mistakes made at the beginning stages of the boundary-making process. Positional disputes stem from errors made during the description stage, when the precise location

(geographical coordinates) of the boundary are in dispute. They also emerge at the delimitation stage, when there are difficulties plotting the boundary, and at the demarcation stage, when there are problems marking the boundary on the ground (Glassner and Fahrer, 2004).

Territorial disputes, by contrast, arise when a state claims the territory of a neighbouring state.

7 United Nations, Statute of the International Court of Justice, 18 April 1946.

6 As with positional disputes, many territorial disputes in regions with a history of colonialism can be traced back to poor mapping practices. Political boundaries were often drawn by colonial powers who had little knowledge of the ethnic and cultural distributions, administrative practices, patterns of economic activity, or even topographical features of the region.

Functional disputes stem from arguments over border enforcement and border control, while resource development disputes usually involve resources that straddle a shared border, such as a river. While positional and territorial disputes are similar in the they can be solved by redrawing the boundary line, functional disputes can be solved by improving border control

(i.e., by opening or closing borders). Resource development disputes can be solved by creating interstate organizations devoted to joint resource management (Prescott and Triggs, 2008).

The traditional approach to international boundary disputes is state-centric, however.

Positional, territorial, functional and resource development disputes all presuppose that the state is the only relevant actor in disputed regions. This assumption is especially problematic in cases before the ICJ that also involve the territorial claims of indigenous peoples. Indigenous peoples (aboriginal peoples, first peoples, native peoples) are the original inhabitants of colonized territories. While there is no formal definition of indigenous peoples in international law, this dissertation follows the United Nations Permanent Forum on Indigenous Peoples and

(2013) uses the working definition provided by The Martinez Cobo Study (1986):

Indigenous communities, peoples and nations are those which, having a historical

continuity with pre-invasion and pre-colonial societies that developed on their

territories, consider themselves distinct from other sectors of the societies now

prevailing on those territories, or parts of them. They form at present non-dominant

7 sectors of society and are determined to preserve, develop and transmit to future

generations their ancestral territories, and their ethnic identity, as the basis of their

continued existence as peoples, in accordance with their own cultural patterns, social

institutions and legal system.

Indigenous peoples are the first occupants of colonized lands and they retain a physical, cultural and/or spiritual connection to their ancestral territories despite of having been the victims of colonial conquest and dispossession. They self-identify as indigenous peoples or tribes and they see themselves as culturally, economically, politically, socially and/or linguistically distinct from other societies, including the dominant society with whom they share a territory (Duffy, 2008).

Arguments for indigenous participation in the international boundary dispute adjudication process stem from broader arguments that support indigenous self-determination.

Indigenous self-determination is defined in article 3 of the UN Declaration of the Rights of

Indigenous Peoples (UNDRIP) as the right to “freely determine their political status and freely pursue their economic, social and cultural development.”8 Indigenous self-determination implies that indigenous peoples have a right to participate in the international boundary dispute adjudication process with respect to territorial disputes that affect them. The right to participate in the adjudication process derives from indigenous territorial rights, which are supported with arguments that emphasize priority in time with respect to territorial occupation; cultural distinctiveness with regard to language, religion, laws and institutions; and an experience of subjugation, marginalization, dispossession, exclusion or discrimination in the

8 UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples: resolution / adopted by the General Assembly, 2 October 2007, A/RES/61/295.

8 past, regardless of whether those conditions persist in the present (ohchr.org). Indigenous territorial claims are justified on the grounds of historical entitlement and include first occupancy arguments (“we were here first”) and time immemorial claims, which rely on the concept of continuous occupation (Meisels, 2009). Indigenous territorial claims are also justified on corrective justice grounds, which asserts that the historical injustices can be rectified by reinstating indigenous peoples’ territorial rights in the present, and cultural integrity arguments, which acknowledge the necessity of territorial rights for the present and future survival of indigenous peoples as distinct cultural groups and nations.

The argument of this dissertation is that the ICJ’s exclusion of indigenous peoples from the boundary dispute process remains tied to colonial legal discourse, that spatiotemporal relationships play a role in the construction of legal arguments, and that international boundary disputes ought to be reconceptualized to take concepts of spatial and structural justice into account. I argue that the exclusion of indigenous peoples from the boundary adjudication process at the ICJ is a structural barrier that is rooted in the discriminatory practices of colonial legalism. Colonial legalism refers to the legal discourses of the colonial era that marginalized indigenous peoples, while also naturalizing their position as inferior and dependent nations

(Kedar, 2003, 2018). An example of colonial legalism can be found in the ICJ’s adherence to the doctrine of uti possidetis, a legal principle that holds that decolonizing states are to inherit the boundaries of the previous colonial or state power. Decolonization refers to the process by which previously colonized countries become independent territorial states and often depends on uti possidetis to define the decolonizing states’ international borders (Betts, 2004; Fabry,

2010). Uti possidetis is at odds with indigenous self-determination because it privileges colonial

9 boundaries over indigenous forms of land division. It is predicated on indigenous dispossession as it fixes the discriminatory and exclusionary spatial hierarchies associated with colonialism in time and place.

Legal geography analyzes the reciprocal relations between law and space and is associated with the phrase “law-space-power nexus” (Blomely, 1994). Critical legal geographers argue that law and space are conjoined in a complex matrix of competing power relations in which the legal is enacted through the spatial and vice versa (Blomely, 1998). I expand on the law-space- power nexus and use the term “international law-spacetime-justice nexus” to signify the shift in legal geography from analyses of domestic law to investigations of international law. The term also describes the shift in analytical framework from space and spatialities to spacetime and spatiotemporalities, making the point that every spatial referent has a temporal counterpoint

(Valverde, 2016). The concepts of spacetime and spatiotemporalities are methodological tools that can be used to analyze questions about how the international legal order produces and maintains spatial hierarchies and inequalities over time and can also be used to explore matters pertaining to theories of spatial and structural (in)justice.

My argument is that the ICJ’s statist discourses over the location of the boundary remain important insofar as state boundaries continue to mark the limits of state jurisdiction. If one accepts the premise that sovereign states are to remain a fixture of the international order for the foreseeable future, then one must also accept that these states are spatially bounded, territorial units (or else they would not be states). Following Lu (2018), however, I argue that the self-determination claims of indigenous transboundary peoples requires that limits are placed on the authority of states to unilaterally control or restrict indigenous peoples’ social

10 relations across international borders (p. 254). Recent work in critical geography suggests that there has been a paradigm-shift (Saliternik, 2017, p. 116) in international boundary adjudication and that the ICJ is increasingly making room in their judgements for the interests of substate and transboundary populations (Saliternik, 2017, p. 116). I follow Lu (2018), however, in arguing that the ICJ’s move away from the principle of stability does not go far enough; rather, a state system that facilitates the self-determination claims of indigenous peoples would resolve international boundary disputes by making state boundaries more porous. This would entail treating boundary disputes not as positional or territorial disputes, but as functional and/or as resource development disputes. This shift in understanding would open the door to cross- boundary co-management schemes that would be in keeping with Article 36 of UNDRIP, thereby enabling the rights of indigenous peoples “to maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural and political, economic and social purposes, with their own members as well as other peoples across borders.”9

1.2 Research questions

This dissertation begins by addressing the relationships between spatial, temporal, and legal discourse with respect to the way that the international legal doctrine of uti possidetis is interpreted and applied in international boundary disputes that involve indigenous territories.

Uti possidetis converts colonial-era boundaries into international borders. It assumes that the

9 UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples: resolution/adopted by the General Assembly, 2 October 2007, A/RES/61/295.

11 international order is composed only of independent nation-states, each with a right to self- determination, provided that self-determination is expressed within the confines of an identifiable, territorial state (Majinge, 2012). The thesis analyzes the conflict between the position that uti possidetis borders are essential to the peaceable maintenance of the international state system and the more critical view that the doctrine of uti possidetis unjustly freezes the violence of colonialism in place and does so at the expense of indigenous territorial claims. The legal principle of uti possidetis makes no room for indigenous territorial rights, as it applies only to states. Uti possidetis ignores indigenous territorial claims and likewise ignores arguments that appeal to historical entitlement, corrective justice, treaty rights, cultural integrity, and indigenous self-determination.

Three questions guide this study:

(1) How does the ICJ’s support of uti possidetis de jure remain tied to discourses that were first forged at the time of colonial conquest? To answer this question, I refer to Lu (2017, p. 121) and the structural approach to international justice. The structural approach to international justice acknowledges that many of the injustices of colonialism were sanctioned and legitimatized through international law. Colonial legalism produces structural and institutional barriers. From the perspective of critical legal geography, the discourses of colonial legalism also create hierarchical, exclusionary, and discriminatory spatiolegal orders that are tied to statist institutions. Critical and noncritical border studies further show how these issues are manifest in border-making and boundary-making practices.

12 (2) What are the spatiotemporal understandings that underlie the ICJ’s utilization of uti possidetis de jure? The spatialities considered by the international legal system are related to time; every spatial representation has a temporal counterpart. For example, uti possidetis de jure supports the principle of the stability of borders and the idea being that the best border regime is the most stable border regime. Historically, the most stable border regime was considered to be the European territorial bordering regime, even if it was considered a permanent border that was imposed from above by the colonial powers on indigenous peoples and their lands.

(3) Can we draw a better line, one that is more responsive to the needs and interests of the indigenous peoples when their ancestral territories are at the centre of an international boundary dispute? Traditional geographers and border scholars argue that the best border lines are those that take the ethnic, economic, and strategic requirements of the state into account

(Prescott and Triggs, 2008, p. 95). More recent scholarship criticizes the traditional view, however, by suggesting that traditional geography and border studies over-emphasizes the state and state-centered perspectives. Critical border theorists argue that the best line is in fact no line at all. Instead of asking how geographers can contribute to drawing better international lines, they ask how geographers can contribute to erasing the lines that are already there. This position can also be found in political theory. Lu (2019), for instance, posits that the problem with proposals for redrawing boundaries is that they tie self-determination claims to the justification of the state’s right to enforce exclusive territorial rights. According to Lu (2019), the self-determination of transboundary claims of indigenous requires an international structure

13 that places limits on the authority of states “to control unilaterally or restrict coercively their social relations across international borders,” which in turn necessitates that we untie “the value of self-determination from statist models of instantiating groups’ self-determination” (p.

253). From this perspective, erasing the borders would allow for alternative border arrangements to take shape, such as the creating international peace parks in the disputed areas or by instituting co-management schemes between the disputing states and indigenous peoples.

1.3 Legal geography: Transforming the ‘law-space-power nexus’

Legal geography provides the background theoretical framework of this dissertation.

Legal geography is concerned with the social construction of space, place, and geography in relation to law and power. Legal geography is a subfield of political geography that investigates the “law-space-power nexus” by examining how spatiolegal orders produce power relations and how power relations produce spatiolegal orders (Blomely and Bakan, 1998; Kedar et al,

2018). The “law-space-power nexus” was coined in Blomely (1994) to refer to the intertwinement of law, space, and power, which in turn has a direct bearing on the hierarchical structuring of social life (Braverman et al., 2014).

Legal geography has traditionally focused on the internal workings of Western liberal democratic states but, as Delaney (2017, p. 670) points out, legal geographers would do well to focus on international law as a “distinct body of law with its own historical geography and contemporary spatiotemporal dimensions.” This project transforms legal geography’s “law- space-power nexus” into the “international law-spatiotemporal-justice nexus.” The concern

14 here is with international law, with a focus on spatiotemporalities and questions of justice.

Modern international law can be traced back to the 1648 Peace of Westphalia. International law differs from domestic law in that there is no centralized government (i.e., a world government) to enforce the law (Merrills, 1998, p. 1). Following Mariana Valverde (2016), I also expand on legal geography’s concern with law and space and include questions of time and temporality. Finally, I also shift critical legal geography’s traditional concern with power relations into an inquiry into theory of justice, focusing on normative distinctions between states, nations and peoples at the scale of the international and their relationship to structural injustices associated with colonial legalism.

According to Delaney (2016, p. 270), the difference between theories of power and theories of justice is that “power talk is descriptive” while “justice talk is normative.” By shifting from

“power talk” to “justice talk,” this project engages more directly with questions regarding the normative implications of the exclusion of indigenous peoples from the international boundary adjudication process. Following Williams (2008), I argue that the geographic literature on spatial justice is limited in the sense that it tends to focus on the spatialities of justice, while leaving the normative aspects of justice undefined or otherwise treated superficially. This opens the door for an inquiry into the relationship between spatial justice and normative political theory and international ethics, in particular as it offers insights into the question of “what the boundaries between political units ought to be” (Miller, 2016; Moore, 2015). At the same time, however, normative political theory is also limiting in that it often tends to focus on theories of justice while leaving the underlying theory of space and geography undefined. By addressing both sides of the equation, I engage with both descriptive and normative theorizing, with the

15 latter aiming at the construction of theories that can guide political action as opposed to

“simply discovering the truth” (Ypi, 2012, p. 6).

1.4 Context: International law and the doctrine of uti possidetis

The international legal principle of uti possidetis is related to the principles of sovereignty and territorial integrity: “as you possess, so you shall possess.” Uti possidetis originated under Roman law as a doctrine of civil possession and was later transposed into international law to facilitate the creation of new states during the decolonization of Latin

America and later Africa. The decolonizing Latin American republics agreed that they should inherit the boundaries that had made up the administrative divisions of the Spanish Empire.

Administrative divisions, such as the borders between provinces, were defined according to

Spanish juridical titles which could then be transformed into international borders (Lalonde,

2002, p. 122). The contemporary formulation of uti possidetis is in keeping with this definition and holds that the borders of newly decolonizing and/or seceding states should correspond to the territorial delimitations of the previous colonial power, in the case of decolonializing states, or the previous state power in the case of seceding states (Vrban, 2018, p. 13). Decolonizing states are states that emerge from colonial empire, seceding states are created when parts of a state’s territory become an independent state (Rafols, 2016).

Uti possidetis can be divided into uti possidetis de jure and uti possidetis de facto

(Parodi, 2002, p. 6-7). Uti possidetis de jure refers to the lines drawn in boundary treaties, while de facto refers to boundaries defined on the ground by forces of occupation. The boundaries of

16 uti possidetis de jure are considered permanent and enshrined in law, while the boundaries associated with uti possidetis de facto are mobile and open to change, albeit eventually stabilized by codification in treaties (p. 8). The Latin American formulation of uti possidetis de jure understood the legal documents of the Spanish Crown to be relevant for locating the colonial administrative boundaries, while uti possidetis de facto gave priority to the boundaries formed through colonial conquest and colonial settlement. The Latin American republics privileged the written uti possidetis de jure over de facto (effective occupation) claims and stipulated that their national territory was to mirror the colonial administrative divisions that existed at the critical date of independence (Lalonde, 2002, p. 28-9). The critical date of independence is the date at which a state has formally declared independence from the previous colonial power. By invoking the critical date and the doctrine of uti possidetis de jure, the Latin American states were able to declare not only that they were the heirs to Spain’s colonial possessions but that their territorial titles were coextensive with the entirety of those of the Spanish Empire in Latin America. It was also declared that Spanish American territories were no longer terra nullius (empty land) and no longer open to foreign colonization, that is, colonization by another colonial power, such as England or France. As a result, indigenous tribal territories that had never been occupied by either Spain or Portugal were “by common consent deemed occupied in law from the first hour.” Uti possidetis de jure led to the legal dispossession of indigenous peoples from their lands. Even the most (relatively) isolated of their territories was incorporated into the state system.

In Africa, uti possidetis was adopted by the African Organization of Unity (AOU) in the

1960s on the grounds that it would stem the tide of violent border conflict resulting from the

17 decolonization process (Shaw, 1997; Ratner, 1996). Most state boundaries were drawn by the

European colonial powers as part of the 1882 “Scramble for Africa,” when at least seven

European powers (Great Britain, France, Portugal, Spain, and later, Belgium, Germany, and

Italy) had colonized and occupied huge tracts of African territory. At the time of decolonization in the 1960s, African leaders had to choose either the boundaries of the colonial territorial regime or the precolonial spatial order based on (indigenous) ethnic divisions. The leaders agreed to accept the principle of uti possidetis de jure (Shaw, 1997; Ratner, 1996). While

European colonizers drew boundaries to reduce armed conflict among the colonial powers, the new African states accepted the boundaries to reduce armed conflict among themselves

(Anaya, 2004). As in the Latin American case, however, the decision on the part of the elites to follow the uti possidetis de jure lines led to the disregard of indigenous and ethnic boundaries.

In the 1986 Frontier Dispute (Burkina Faso/Mali), the ICJ defined uti possidetis de jure as a principle or rule that “is logically connected to the phenomenon of obtaining independence, wherever it occurs”10 and set out a two-step procedure for the doctrine’s application. The Court first determines the date of independence (the critical date). The Court then determines the position of the boundary line on the basis of evidence provided by official maps, national legislation, state administrative records, and other admissible documents. In this way, uti possidetis de jure “freezes the territorial title” and “stops the clock” at the critical date of independence, ensuring that the border line is legally in effect from the critical date of independence onward. The uti possidetis de jure principle is thought to ensure the stability of

10Frontier Dispute (Burkina Faso/Republic of Mali) (1986). Judgment, I.C.J Reports 1986, p. 554.

18 borders and, by extension, the stability of the international state system. The supporters of uti possidetis argue that the principle provides a clear and concise rule and ensures the smooth transfer of power in cases of decolonialization or secession. It is also thought that uti possidetis de jure prevents border wars on a continental scale.

There are three criticisms of uti possidetis de jure. First, with respect to the doctrine of the stability of borders, studies show that international borders that were determined by uti possidetis de jure are no more and no less stable than borders that were not determined by uti possidetis de jure (Hensel, 1996). Second, uti possidetis de jure is too strict in its application. Uti possidetis de jure supports a conception of international spatial order that sees international boundaries as fixed and inviolable, i.e., “sacrosanct.” In cases of decolonization or secession, new states must follow existing lines of demarcation instead of negotiating alternative border arrangements (Miller, 2016). Uti possidetis de jure limits the possibilities for change as it disallows the formulation of alternative border-regimes that can adequately incorporate indigenous territorial claims based on the principles of self-determination and self-government.

Third, uti possidetis de jure boundaries reflect “the operation of deep structural injustices” that are rooted in notions of colonial entitlement (Anghie, 2007, p. 3). Uti possidetis de jure perpetuates the spatial hierarchies and structural injustices associated with colonial legalism and colonial border-making practices. Uti possidetis de jure privileges the borders drawn by colonial European powers over pre-existing natural, ethnic, and historical borders and border regimes. This leads to a situation in which indigenous peoples and their representatives have no legal standing before the International Court of Justice (ICJ). This barrier of access consigns indigenous peoples “to a kind of international legal shadowland” in which they have “the

19 weakest rights to the lands they inhabit” and “even weaker rights to equal treatment under the law” (Reisman, 1995, p. 142).

1.5 Methods and methodologies: Case studies

The thesis analyzes two different legal cases at the International Court of Justice—the

1992 Land, Island and Maritime Frontier Dispute (Nicaragua intervening) between El Salvador and Honduras (hereafter, 1992 Frontier Dispute), and the 1994 Territorial Dispute between

Libya and Chad (hereafter, 1994 Territorial Dispute). The 1992 Frontier Dispute (El

Salvador/Honduras) and the 1994 Territorial Dispute (Libya/Chad) were chosen because the boundary disputes involve land and territory where there is at least the possibility (if not actuality) of pre-existing territorial claims, i.e., the lands could theoretically be awarded to indigenous peoples on the grounds of historical entitlement. The territories separating El

Salvador and Honduras are the traditional homelands of the Chorti Mayan, Lenti, and Pipil peoples; the lands separating Libya and Chad are the traditional territories of the Saharan

Toubou tribes. The territorial rights of the resident indigenous peoples were not considered in either of the two cases, and it was hypothesized that the cases would offer evidence of the way that the ICJ and international law work to silence indigenous peoples and to both spatially and legally dispossess them from their ancestral lands. The cases were also chosen because they show how giving a voice to indigenous peoples and respecting their territorial claims would be potentially destabilizing to the international order.

20 In order to select the cases, I first made a list of all ICJ cases that were settled between the years 1953 and 2015. I eliminated the European cases, for example, the 1953 dispute between the United Kingdom and France over the Minquiers and Ecrehos Islands. I then eliminated the cases that were ongoing, such as the 1962 Temple of Preah Vihear (Cambodia v. Thailand). The remaining cases were listed by date and then by continent. I noted that there was a cluster of cases in the mid-1990s and again in the mid-2000s. I settled upon the 1992 Frontier Dispute (El

Salvador/Honduras) and the 1994 Territorial Dispute (Libya/Chad), first, because it was hypothesized that cases from the 1990s because of their proximity in time with my third case study, the James Bay Cree and Quebec secession. The 1992 Frontier Dispute and the 1994

Territorial Dispute were also chosen because of the difference in geographic context. The purpose was to show how the application and implementation of international law takes root in and/or is shaped by different places (i.e., Spanish America, the Sahara, the Artic), lending credence to Delaney’s (2016) contention that “the more kinds and wider variety of places that are investigated the more we can say about how place matters to the legal and how the legal is implicated in the production (or destruction) of place(s)” (p. 2).

Following Gibson (2013), indigenous claims for recognition regarding their rights in land, resources, sovereignty and self-governance represent a fundamental challenge to the political hegemony of the state and to the international state system (Gibson, 2013, p. 422).

This latter point is supported by my third case study, the 1995 publication by the Grand Council of Cree of Northern Quebec, Sovereign Injustice: Forcible Inclusion of the James Bay Cree and

Cree Territory into a Sovereign Quebec (hereafter Sovereign Injustice, 1995). The purpose in comparing Sovereign Injustice, 1995, with the 1992 Frontier Dispute (El Salvador/Honduras) and

21 the 1994 Territorial Dispute (Libya/Chad) is to “make visible” the spatialities and temporalities associated with indigenous legal concepts such as time immemorial, prior and first occupancy, corrective justice, and self-determination. This offers a perspective from which to also ‘make visible’ the spatial hierarchies and structural injustices associated with the legal discourses of the ICJ and the institutionalized exclusion of indigenous peoples from the boundary adjudication process (Gibson, 2013).

The primary source materials for Chapter 4: The International Court of Justice, El

Salvador/Honduras and Indigenous Dispossession and Chapter 5: Libya/Chad, The Toubou Tribes and the Aouzou Strip consist of both the written and oral proceedings of the ICJ boundary cases. These are contentious cases that were brought to the Court voluntarily by the states, as opposed to advisory opinions that are referred to the ICJ by other agencies of the United

Nations. I analyze the exchange of memorials, counter-memorials, replies, and rejoinders that constitute a boundary dispute case in the Chamber of the ICJ.11 This study additionally incorporates the oral proceedings of the cases. Legal scholars normally overlook the pleadings phase of proceedings when analyzing ICJ cases, resulting in a conception of the law as pure

“judgment, rather than argumentation and debate” (Burges, 2012, p. 16). The written and oral proceedings constitute the primary sources of this project and are analyzed with an eye to

‘making visible’ the spatiotemporal imaginaries that underlie the state-centric doctrine of uti

11 Contentious cases begin with a Special Agreement between the disputing states that both confers jurisdiction upon the Court and specifies the matters in dispute. The states then prepare their case—at considerable expense (Bugres, 2009, p. 26)—and submit the memorials and counter-memorials according to a predetermined schedule. The memorial is the first official submission and contains a statement of fact, a statement of jurisdiction, and a statement of law, in addition to an argument section and a final “prayer for relief,” where the disputing state presents a list of its petitions (Kolb, 2014). Counter-memorials—written responses to the original memorial—are followed by short replies and rejoinders. These activities take place while preparations are made for the beginning of the sitting of the Court and the oral proceedings.

22 possidetis de jure. The point is to show how the categories of the border, territory and territorial title are constructed in legal texts and likewise to show how these categories are imbued with specific spatiotemporal imaginaries that relate to indigenous peoples and their land claims.

Taken together, the 1992 Frontier Dispute between El Salvador and Honduras, the 1994

Territorial Dispute between Libya and Chad, and 1995 Sovereign Injustice by the Grand Council of Cree illuminate how the ICJ and international law have traditionally endorsed colonial administrative territorial boundaries over precolonial, indigenous (ethnic) boundaries. In the

1992 Frontier Dispute between El Salvador and Honduras, the Court was asked to reconstruct the uti possidetis de jure boundary line from archival materials that included the land grants

(titulos ejidales) made by the Spanish Crown to the original indigenous communities. El

Salvador asked that the ICJ take the indigenous land grants into account when deciding the boundary line. The claims were dismissed by the ICJ as irrelevant. Likewise, in the 1994

Territorial Dispute between Libya and Chad, Libya asked the ICJ to consider the title that was vested in the tribal Toubou peoples of the Aouzou Strip. Here too, the ICJ deemed the precolonial indigenous title as irrelevant to international law and ruled in favour of Chad,

France’s successor state in the region. The Grand Council of Cree offers a counterpoint to the legal discourses of the ICJ while still engaging with legal geographic themes.

1.6 Organization of the Argument

23 The dissertation opens with an examination of the field of legal geography and discusses the transformation of the “law-space-power nexus” (Blomely, 1998) into the “international law- spacetime-justice nexus.” Chapter 2: Transforming legal geography discusses political geography, critical geopolitics and critical border studies in relation to the spatialities of the state system, before moving on to a discussion of Valverde’s (2015) criticism that legal geography needs to incorporate notions of time and temporality into its analytical framework. I provide examples of the temporalities of international law that relate to international boundary disputes, focusing on the spatial implications of uti possidetis requirement of the critical date of independence, the appeal to precedent, and the reliance of the ICJ on intertemporal law, which holds that contemporary disputes are to be decided with reference to the laws that were in place at the time the boundary dispute first emerged. The chapter argues that the temporalities and its associated spatiolegal bordering practices are examples of the spatial hierarchies and structural injustices associated with colonial legalism. The geographic concept of spatial justice is linked with “the structural approach” described in Lu (2017, p. 148). The structural approach acknowledges that many of the historical (and spatial) injustices associated with colonialism were sanctioned and legitimated through international law. The chapter shows how international law produces and reproduces historical injustices in contemporary contexts as a result of temporal inertia on the part of the ICJ.

Chapter 3: The foundations of indigenous territorial claims outlines the different theoretical grounds on which indigenous peoples may claim a right to have standing in international law with respect to territorial disputes that affect them. The chapter examines historical entitlement arguments, which hold that a group’s past connection to a territory

24 justifies the group’s present possession, the principle of priority (“we were here first”) in addition to the doctrine of “time immemorial,” which holds that territorial title derives from first and continuous occupation. It also examines remedial arguments, such as corrective justice and treaty violation claims, which argue for the restitution of indigenous territorial rights in order to remedy past injustices. The chapter provides an overview of cultural integrity arguments and argues that care has to be taken to not essentialize indigenous identity. The final sections discuss indigenous self-determination and self-government as officially understood by the United Nations in the 2007 United Nations Declaration of the Rights of

Indigenous Peoples (UNDRIP). UNDRIP (2007) does not address the issue of territorial and border control per se, but it is argued that UNDRIP can be used to support open border and co- management schemes that respect cross-boundary relationships with the territory and land.

Chapter 4: Spatial hierarchies, structural injustice and the 1992 Land, Island and

Maritime Frontier Dispute (Nicaragua Intervening) (hereafter 1992 Land Dispute) considers the application and interpretation of uti possidetis de jure with the context of the 1992 boundary dispute between El Salvador and Honduras. The analysis focuses on the spatial hierarchies associated with the ICJ’s ruling that pre-independence indigenous land grants (titulos ejidales) were irrelevant when determining the 1821 uti possidetis border line. I evaluate the ICJ judgment from the perspective of indigenous territorial claims and ask after the possibility of drawing a line that would be centered on indigenous self-determination claims. It is argued that the ICJ provides an example of the structural injustices of colonial legalism in its strict adherence to the principle of stability.

25 Chapter 5: Artificial boundaries, the Toubou Tribes and the Aouzou Strip examines the

1994 Territorial Dispute (Libya Arab Jamahiriya/Chad) and the ICJ’s support for Chad’s arguments in favour of uti possidetis de jure. Using legal geography and critical border studies, it is shown that the ICJ judgment supports a conception of international legal justice that perpetuates and legitimates the structural injustices associated with colonial legalism. I provide an overview of the concept of artificial borders, the “scramble for Africa,” and the contemporary critique of the Eurocentric view that borders are foreign to the African continent.

I examine the ICJ’s disregard for the Libya’s arguments in support of the recognition of precolonial indigenous title along with Judge Sette-Camara’s dissenting opinion in order to show how the judgement works to dispossess the Toubou tribes.

Chapter 6: Uti possidetis, Quebec Sovereignty and the James Bay Cree is the final chapter and looks at the law-spacetime-justice nexus within the context of the 1995 Quebec separation debate. The chapter focuses on a text published by the Cree First Nations of northern Quebec and James Bay, Sovereign Injustice: Forcible Inclusion of the James Bay Cree into a Sovereign

Quebec. The Parti Québécois had claimed that, in the event of separation, it was justified on the grounds of uti possidetis to retain the borders that it had as a province of the Canadian federation. The chapter examines the Grand Council of Cree’s rejection of uti possidetis and its arguments in favour of indigenous self-determination. The chapter highlights the similarities and differences between indigenous and Quebec nationalist understandings of self- determination by clarifying the geographical and spatial goals of each. Indigenous self- determination generally takes place within an existing state whereas nationalist self- determination aims at the creation of a new state. The chapter also looks at the Supreme Court

26 of Canada’s response to the separation debate in the Reference re Secession of Quebec ([1998]

2 S.C.R 217) and notes how the Supreme Court distinguished between the claims of the

Québécois people and the claims of indigenous peoples.

1.7 Conclusion

The dissertation concludes with a statement on the institutional and practical implications of the argument in relation to the issue of “drawing a better line.” Recent scholarship on international boundary disputes suggests that there has been “a paradigm-shift”

(Saliternik, 2017, p. 116) in international boundary adjudication. The ICJ is apparently moving away from the state-centric principle of stability and is beginning to make room in their judgements for the interests of substate and transboundary populations into account. In response, I argue that while there has been some progress in the dispute resolution process,

Saliternik (2017) overstates the case. It is not enough that the ICJ issues judgments that take the impact of local populations into account. A real “paradigm-shift” would occur if the ICJ were to allow indigenous peoples and their representatives to present their claims directly to the

Court. I agree with Saliternik, however, that statist discourses over the location of the boundary remain important. State boundaries mark the limits of state jurisdiction. If one accepts that sovereign states are a permanent fixture of the international order, one must also accept that these states are spatially bounded, territorial units (or else they would not be states). This does not mean that the statist principle of stability has to take precedence over indigenous self- determination claims but that there is a need to balance continuity and stability against the

27 principle of indigenous self-determination. At the same time, however, I advocate for a conception of the international order that follows Lu (2018) in suggesting that the solution to the problem of transboundary territorial indigenous claims is about limiting the authority of states to unilaterally control international boundaries. Making borders more porous would open the door to cross-boundary comanagement schemes between states and indigenous peoples that are premised on the recognition of indigenous self-determination. It would also be in keeping with Article 36 of UNDRIP (2007) that indigenous peoples have the right to “to maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural and political, economic and social purposes, with their own members as well as other peoples across borders.”

28 CHAPTER TWO: TRANSFORMING LEGAL GEOGRAPHY

2.1 Introduction

Legal geography is a field of academic research that holds that legal processes produce spatial practices, and vice versa. Law and space are co-constituted and reciprocally related

(Bartel et al., 2013). Critical forms of legal geography show how these mutually reinforcing legalities and spatialities work to perpetuate the social hierarchies and structural injustices associated with colonial legalism (Kedar et al., 2018). This chapter takes its bearings from critical legal geography’s notion of the “law-space-power nexus,” but shifts the focus from domestic law to international law, from space to spacetime, and from power to justice. First, the geography side of the legal geography equation is discussed, borrowing from political geography, critical geopolitics, and critical border studies in order to problematize conventional understandings of the spatialities of the international state system. The second part of the chapter discusses Valverde’s (2015) critique that legal geography is overly concerned with space and spatiality and needs to incorporate time and temporality into its analytical framework. The concept of spatiotemporalities is a methodological tool that allows for a more nuanced understanding of the legal concepts associated with international boundary disputes, such as the critical date of independence, the appeal to precedent, and the reliance of the ICJ on intertemporal law, a doctrine that holds that contemporary disputes are to be decided by referring to the laws that were in effect at the time the boundary dispute first emerged (Kotzur,

2008).

29 The third part of the chapter shifts the law-space-power nexus from discussions of power to discussions of justice. This section examines the emergence of uti possidetis de jure in eighteenth-century Latin America, its later application in 1960s Africa and its contemporary use by the ICJ. Uti possidetis de jure and its associated spatiolegal bordering practices have historically been prejudicial to indigenous territorial claims. These bordering practices are examples of spatial injustice, particularly in cases when the uti possidetis line divides transboundary peoples across neighbouring states. The bordering practices also exemplify structural injustice. Lu (2017, p. 21) defines structural injustice as “the institutions, norms, practices, and material conditions that played a causal or conditioning role in producing or reproducing objectionable social positions, conduct, or outcomes.” The “structural approach” described in Lu (2017, p. 148) acknowledges that many of the historical injustices associated with colonialism were sanctioned and legitimated through international law. It also posits that we have a responsibility to provide redress to groups who suffered from these injustices. From a border perspective, one way to rectify the historical and spatial injustices of colonialism would be to work in support of boundary adjustments centered around indigenous self- determination. Lu (2018) warns against redrawing the map, however, and suggests that it would further entrench the state sovereignty/territoriality construct. Taking indigenous territorial claims seriously would instead require an international structure that limits the authority of states to unilaterally control their borders (p. 253). Indigenous self-determination claims ought to be untied from statist models of boundary-making and require the opening, as opposed to closing, of international boundaries.

30 2.2 Theoretical framework: Legal geography

Legal geography makes “the interconnections between law and spatiality, and especially their reciprocal construction, into core objects of inquiry” (Braverman et al., 2014, p. 1). It interrogates the ways law and geography interact by questioning “what the law is and what it does spatially” (Bartel et al., 2013). Legal geography challenges the abstractions of the law by asking how legal processes and practices are influenced by space and place, and also challenges the abstractions of space by asking how they are influenced by legal processes and practices

(Bennett and Laynard, 2015, p. 408-9). For legal geographers, law and space are mutually constitutive—geography and social space affect law and legal processes while law and legal processes in turn affect geography and social space. To say that spatialities and legalities are mutually constituted (or co-constituted) is to say that spaces and places are made meaningful in distinctively legal ways and vice versa. Delaney (2015) explains:

to legally constitute a geographic entity means to call it into being or modify its social

significance through the distinctive practices of naming, classifying, ruling,

governing or ordering associated with law most broadly conceived. It is to invest entities

with distinctively legal rules, rights, obligations, prohibitions, facilitative regulations, and

so on, that situate these entities within networks of constellations of power which

strongly condition actual performance and events with respect to these entities. (p. 98)

The point is that law and space shape social relations, while social relations shape law and space. Legal geography is co-constitutive—geography and social space affect law and legal development and, conversely, law and legal development affect geography and social space.

The catchphrase “law-space-power nexus” developed within legal geography to bring

31 the analytic frameworks of law and geography closer together. As articulated in Blomely (1998), the law-space-power nexus calls the abstractions and apolitical neutrality of legal formalism into question. The law-space nexus is meant to capture the reciprocal relationship between law and space and is synonymous with terms such as “spatiolegal” and “legal spatiality” (Smith,

2014). Critical legal geographers further expand on the term to stress the point that space and law also have bearings on the “deployment of power” and the structure of everyday social life.

Blomely (1994) argues:

The construction of legal spaces is a central part of a broader process by which law and

social life are interpreted. The representation and evaluation of space in legal discourse,

as in the construction and value ascribed to mobility or the locality, is constituted by, and

is in turn constitutive of, broader accounts of social and political life under law. Space, like

law, is not an empty or objective category, but has a direct bearing on the way power is

deployed and social life constituted. The geographies of law are neither passive backdrops

in the legal process, nor of random import; they can, in combination with their implied

claims concerning social life, be problematic and even oppressive.

Accordingly, law and space are conjoined in a complex matrix of competing power relations in which the legal is enacted through the spatial and vice versa. Power relations are not politically neutral as they work in tandem with law and space to produce social and political hierarchies, which in turn leads to the production and construction of boundaries and borders between peoples, places, and things.

Critical legal geographers call legal and spatial categories into question, particularly when those categories are presented as fixed, natural, objective, abstract, asocial, and/or

32 apolitical entities (Butler, 2009; Blomely and Bakan, 1992). According to Delaney (2015, p. 97), law and space are not things, “like a giraffe.” Law and space are better conceptualized as dynamic, shifting, and contradictory social processes that are much more “like the movement of a swarm of hornets.” Legal geographers take issue with theories that treat space abstractly and with theories that treat the law a-spatially. The point is that neither space nor law are pre- political, neutral, or objective categories. Space and law are socially constructed and socially produced. Spatial and legal categories gain meaning through the world of social action. There is no such thing as “pure” space. Space is neither logically prior to nor separate from social, political, and legal relations. It cannot be separated from society (Murdoch, 2005).

Critical legal scholars also criticize the idea that the law is apolitical and neutral. For

Judith Shklar (1986 [1964]) legalism is associated with traditional, doctrinal theories that divorce law from social context, removing it “from general social history, from general social theory, from politics, and from morality” (p. 2). As a result, legal thinking is often fenced off

“from all contact with the rest of historical thought and experience” (Shklar (1986 [1964]). West

(2003) summarizes Shklar (1986 [1964]) and the position that the “barriers generally drawn by professional and legal philosophers between ‘jurisprudence’ and political and moral philosophy are artificial and unjustified” (p. 119). Legalism insists that the morality of conduct conform with rules laid down in the past. Legalism is predicated on the proposition that the law can determine “all questions posed by conflicting rights and duties: law, then, in the empire of legalism, has a static, given, autonomous, seamless, and complete nature” (p. 119). As a consequence, the legal profession has “a distinctively and unmistakably conservative hue” (p.

119). The rules that define rights were laid down in the past, and the law is committed “to the

33 preservation of that past and has virtually by definition a conservative ideological worldview”

(West, 2003, p. 120). Legalism places a positive value on conformity to rules, which means that it is in service of the status quo.

West (2003) states: “this legalistic moral orientation is sometimes inappropriate, and insistence on it will sometimes inadvertently demonstrate law’s limits rather than law’s potentiality” (p. 123). Legalism is sometimes “an inappropriate ideological framework within which to conduct world affairs” (p. 129). Legalism is criticized for promoting legal solutions as the only solution, when in fact it is one option among many. In an international context,

Pederson (2012) defines “international legalism” as “the extension of legalism (from the domestic arena) to the international discourse done in the name of addressing global collective action problems” (p. 553). Here, too, legalism is defined as no more than an ideology that competes with other political preferences. Legalism is political dogma, meaning that law is

“closely tied to the observation that law as a discipline does not hold any elevated position as such within society; and law, as an enterprise, is necessarily intertwined with morals and politics” (p. 554). The concept of international legalism hence captures the idea that

“international law (and in particular adjudication) offers a readymade answer” when international problems arise (p. 554).

The critics of legalism hold that law is value-laden and ideological. The deliberate isolation of the legal system and the treatment of law as a neutral social entity is “itself a refined political ideology, the expression of a preference” (p. 474). Legal geography acknowledges this fact and is a form of “law-in-context” or nondoctrinal research (McConville,

2007, p. 10). Law-in-context is a form of empirical legal scholarship that includes sociolegal

34 studies, feminist legal studies, critical legal studies, NAIL (new approaches to international law), and TWAIL (Third World approaches to international law). From the perspective of TWAIL, for instance, international law is “a predatory system that legitimizes, reproduces and sustains the plunder and subordination of the Third World by the West” (Mutua, 2000, p. 31). International law was essential to imperial expansion and is “a regime and discourse of domination and subordination, not resistance and liberation” (p. 31).

Research in legal geography takes many forms, however. The work of academic geographers tends to focus on the spatiality and the materiality of legal cases, with a limited focus on the associated legal doctrine, while legal scholars tend to emphasize doctrinal analysis and case law at the expense of spatialities. Most geographers focus on the relationship between the law and the social context of a case, and place less emphasis on case analysis, while critical legal scholars spend more time on doctrinal analyses at the expense of the social context (Osofsky,

2007, p. 13-16). Despite these disciplinary differences, however, legal geography in general aims to make the relationship between space and law “visible.” Bartel et al. (2013, p. 342-343) posits that geography should “be made visible to the law,” and the law ought “to be revealed to geographers,” because “it is this very invisibility that legal geography addresses” (p. 342).

Accordingly, legal geographers focus on “the ‘taken-for-granted hidden stuff’” and pursue

“questions of what (and whose) space, and which (and whose) law” is being dealt with (p. 342).

Legal geographers ask questions about the effects of a law on places and peoples, as well as the effect of places and peoples on the law, because they aim to “reconnect the concealed, forgotten or prohibited connections between peoples and places, between the human and the more-than-human.” (p. 343). Bennett and Laynard (2015, p. 407) concurs. The “legal geography

35 project” cited by Bennett and Laynard is concerned with “the law’s spatial blindness.” Legal geographers are “spatial detectives” seeking “the presences and absences of spatialities in legal practice” while they simultaneously search “for laws’ traces and effects embedded within places” (p. 407). Legal geographers investigate the conceptual frameworks of both geography and law in order to make visible the ways they meet and bear upon each other (Holder and

Harrison, 2003).

2.2.1 Critical geography and the spatialities of state territory

Legal geography offers a perspective from which to investigate space, place, and geography in relation to the discourses of international law. While most legal geographic research focuses on the internal workings of Western societies, legal geographers are increasingly turning to international law, recognizing that it “provides infinite avenues for legal geographic inquiry that are not possible in the confined spaces marked out by domestic legal regimes” (Delaney, 2016, p. 4). Smith (2014, p. 144) notes that legal geographers are attending more and more to “the international and transnational … to the hybrid—and often violent—legal geographies associated with political and economic globalization.” In Hall (2017, p. 258), this leads to many new and interesting avenues of research given that the most striking feature of the international legal system is “its decentralized, consensual, and relatively primitive character”

(p. 258). The sources of international law differ from the sources of domestic law: there is no international government, no system of international legislation, and no international

36 legislature. International law is distinct from domestic law in regard to law-making, spatial practices, and spatiotemporal imaginaries (Delaney, 2016, p. 4).

Critical legal geographers problematize the spatial foundations of international law by arguing that it is based on a static conception of the international order. The traditional view of international society is that it is made up of blocks of spatially continuous, internally homogenous units that are separated by clear, linear, fixed boundaries. Individual states are conceptualized as idealized decision-making subjects and as legal persons. States make claims to territorial sovereignty and territorial integrity based on strictly defined borders and are treated as unified subjects under the law (O’Tuathail, 1996; Dodds et al., 2016). Like critical legal geographers, critical legal scholars see international law as predicated on a conception of international order that expresses state authority in spatial terms; that is, international law envisions a world made up of a society of states that are contiguous, bounded territories (Shaw,

1997, p. 76). State sovereignty is the legal manifestation of state power over territory and is understood as a collection of legal rights, power, liabilities, and duties. The world map provides an illustration of this framework. We see a puzzle-like jumble of states, each separated into

“distinct, disjointed and mutually exclusive” territorial units (p. 76). Each state claims a territorial space of sovereignty, jurisdiction, and population (Shaw, 2013, p. 3). The limits of state territory and its borders define the limits of state sovereignty and its authority. The boundaries are located at the limits of state territory and, like the fences that surround private property, demarcate the “property” of the state (Basaran, 2010, p. 33).

Critical legal geographers argue that neither the state nor its boundaries have static, fixed, natural, or essential qualities. The state and the international system are socially

37 produced: “Although often assumed to be innocent, the geography of the world is not a product of nature but a product of the histories of struggle between competing authorities over the power to organize, occupy and administer space” (O’Tuathail, 1996, p. 21). In Agnew (1994, p. 58), the statist conception falls into the “territorial trap.” It assumes that state territories are fixed units of sovereign space, that states are composed of an “inside” (the domestic sphere) and an “outside” (the international sphere), and that the territorial state exists prior to and is a container of society. The central assumption is that the state can be conceptualized as a unified spatiotemporal container. Murphy (2013, p. 1213) proposes that the statist presuppositions of international law exemplify the hold that “the modernist idea of territory” has on “the contemporary, supra-local political-geographic imagination.” The modernist idea of territory, according to Murphy (2013), assumes that the world of the international is “a world of fixed spaces” (p. 1213). The modernist idea of territory is premised on a view that divides the earth’s surface into discrete territorial units (states) that reflect a pattern of political-cultural communities (nations).

2.2.2 Traditional and critical border and boundary studies

Traditional geographical approaches to border and boundary studies usually offer descriptive analyses of the boundary location and the political and historical processes leading up to the border’s demarcation. The traditional concern is with the historical evolution of boundaries as lines that delimit state jurisdiction and state territories (van Houtum, 2006, p.

674). This view takes the border as a naturalized entity whose primary function is to mark and

38 divide the political limits of states (Newman and Paasi, 1998). The underlying assumption is that borders are largely static and deterministic entities (Newman, 2006; Paasi, 2005). Critical border scholars, by contrast, call traditional boundary and border discourses into question, and seek to denaturalize, contest, and alter the hegemony of dominant spatial representations

(Blomely, 2006; Flint and Taylor, 2007). Such critics argue that the traditional descriptive approach is overly reliant on state-centred perspectives (Vaughan-Williams, 2011). There is little room for the concerns of nonstate, substate and trans-state actors and agencies that might be affected by the boundaries under discussion (Grundy-Warr and Schofield, 2005).

Traditional boundary and border discourses dehistoricize and decontextualize processes of state formation, and obscure interactions between processes operating at different scales

(Agnew, 1994).

As with critical legal geographers, critical border researchers view states neither as given realities nor as natural regions (Kossolov, 2005, p. 610). Borders are social, political, and discursive products of the production and institutionalization of territories and territoriality.

They have symbolic, cultural, historical, and religious meanings for social communities

(Newman and Paasi, 1998). The focus is on the way that the border line is socially constructed or socially produced (van Houtum, 2005; Newman, 2006). Boundaries are socially constructed legal entities that mirror both past and present power relations between states and other entities while also functioning as an important territorial divider (Kossolov, 2005).

Border studies are divided between state-centred approaches and those that make room for the concerns of nonstate, substate, and trans-state actors and agencies (Blake, 2000;

Kolossov, 2006; Agnew and Muscará, 2012). This mirrors the division within political theory

39 between statist and non-statist accounts. Statist theories identify peace, stability, order, and justice as functions of the state (Moore, 2015, p. 89). State territorial rights and state borders are necessary to international peace and order. Political science, international relations, and law all agree with the following statement: “that state sovereignty necessarily involves control over territory and that whatever justifies the state also justifies the territory of the state—is the basis of virtually all of our contemporary thinking about states and their territories” (Moore,

2015, p. 6). Non-statist political theories, on the other hand, attach territorial rights to non- statist collectivities such as ethnogeographic communities (Koler, 2010), or to cultural nations

(Miller, 2013). Land, Conflict and Justice (Koler, 2010) identifies the territorial rights-holders with groups that have special ecological and environmental relationships with the land, whereas (Miller, 2013) holds that territorial rights ought to accrue to the nation, a collectivity that does not always share the same contours as the state.

Statist and non-statist theories differ with respect to the idea that state boundaries are static and deterministic and with respect to questions concerning the boundary-drawing process. Statists aim to specify the unit around which the boundary line is to be drawn. From a statist point of view, such a unit would be a state. A non-statist would potentially grant territorial rights to indigenous peoples, minority groups, ethnic groups, and nations, although this might be difficult within the confines of international law. From this perspective,

International law is exclusionary and assumes that the modern state-system is composed of distinct territorial states, each of which has an exclusive right to govern within clear territorial boundaries.

40 2.3 Time and temporalities: Transforming the law-space-power nexus

One criticism of legal geography is that it focuses too narrowly on space and spatialities.

Valverde (2015) contends that legal geographers need to expand on their theoretical frameworks and take time and temporality into account. As with Harvey (2005), Valverde

(2015) argues that space need not be the central, privileged, and defining concept of geography. In Valverde (2015) and Harvey (2005), “space-time” or “spatiotemporality” is the relevant category: “This quite properly implies that ‘all geography is historical geography’ no matter where it is to be found” (Harvey, 2005, p. 243). The point is to consider how temporalizations affect spatializations and vice versa, how spatializations affect temporalizations (Braverman et al., 2014, p. 13). Instead of being spatial detectives, legal geographers would instead be spatiotemporal detectives (Bennett and Laynard, 2015, p. 408-

9).

Valverde (2015, p. 9) posits that space and time neither exist as entities in themselves nor as the objective qualities of entities. She also holds that the spatial dimension of existence cannot be isolated from the temporal dimension. Therefore, legal geographers should focus more on understanding the way that space and spatiality relate to time and temporality and the way that they are conjoined as spatiotemporalities. Valverde (2015) holds that we can’t know anything about what space and time are in themselves, but that we can say something about the way that social processes are temporalized and spatialized (p. 32). Thus, although time and space are “not available to us to describe or theorize,” we can nevertheless “analyze specific practices that govern through time or through space” (p. 36). Valverde also suggests that legal geographers find a way of thinking about temporality that is not reducible to

41 empirical history, and suggests that theorists consider law and legalities as not only grounded in place and space but also grounded in “lived temporality.” In Valverde (2015), this means to engage with research that moves beyond empirical history to compare concepts such as linear and nonlinear time, historical and ahistorical time, or aboriginal and spiritual time (p. 30).

By becoming more inquisitive about the multiple aspects of temporality, and by developing more sophisticated conceptions of space-time (Braverman, 2014), it becomes possible to clarify how temporalities play a constitutive role in spatiolegal systems. It also becomes possible to show how different spatiotemporal logics come into conflict and how these conflicts are indicative of differences in legal epistemologies and ontologies. One can also show how incommensurable temporalities often coexist in the same place and in similar legal spaces. Von Benda-Beckmann et al. (2014, p. 30) concurs, suggesting that the law-space-power nexus can be further complicated by making connections between temporalities and spatialities. This can be done by focusing on the temporalities of coexisting legal spaces, with a view to understanding legal spaces and places as relative in time, varying in permanence, and, importantly, not as static entities but as spaces that are “perpetually perishing” (p. 30).

2.3.1 Latin America, uti possidetis, and the critical date of independence

The critical date of independence requirement of the doctrine of uti possidetis de jure is an illustration of the spatiotemporalities of international law. Uti possidetis originated in Roman civil law as a doctrine of private possession and was later transposed into international law with the decolonization of Latin America in the early 19th century. After the withdrawal of the

Spanish empire, the new Latin American republics agreed to define their national territories by

42 referring to the colonial administrative divisions that existed at the “critical date” of independence (Lalonde, 2002, p. 28-9). Each of the new Latin American states was recognized as possessing the territories it had possessed as provinces of the Spanish Empire in 1810 in

South America or in 1821 in Central America. The Latin American states declared they were the heirs of all of Spain and Portugal’s possessions and that their titles were coextensive with those of their colonial predecessors. They also declared that the Spanish American territories were no longer terra nullius (empty land) and no longer open to foreign colonization. Territories—the

Gran Chaco, for instance, or Amazonia—that had never been occupied by either Spanish or

Portuguese colonists were then by common consent deemed “occupied in law from the first hour.”

International law fixes the borders and boundaries of the international state system in space and time. The modernist political-geographic imagination envisions the international state system as made up of internally homogenous units of territorial space that are separated by clearly demarcated boundaries. The boundaries are spatially fixed through law, both on the world map and on the ground (O’Tuathail, 1996; Basaran, 2010, p. 32). The underlying conception of space is that of absolute space. The boundaries of the state are inviolable

(sacrosanct) and the state system is conceptualized as an unchanging grid. States can be clearly identified in that each state occupies a unique location that can be pinpointed and described with precise reference to the coordinates of the world map. The doctrine of uti possidetis (“as you possess, so you shall possess”) upholds the conventional territorial divisions of the international state system by assuming that decolonizing or seceding states have rights to the borders set by the previous colonial or state powers. States inherit the colonial administrative

43 borders they held at the time of independence, and territorial disputes are to be settled in accordance with colonial title and colonial land division (Gilbert, 2006).

From a temporal perspective, the critical date of independence acts to anchor the statist spatial paradigm in time. According to Castellino (2004, p. 129-130), the critical date of independence refers to “a certain moment at which the rights of the parties crystallize so that acts after that date cannot alter the legal position.” The critical date of independence is decisive for formulating the territorial rights of the states in question. It is also decisive for indigenous peoples, however, for whom the critical date of independence is synonymous with colonialism and dispossession. The Spanish colonizers first invoked the doctrine of terra nullius (“empty land”) as a justification for its colonial claims over indigenous territories. In Latin America, leaders used uti possidetis to put an end to foreign colonialization, declaring that the Americas were no longer terra nullius and no longer open to foreign occupation. These lands had previously been claimed through discovery and conquest. In Latin America, uti possidetis helped define and determine the territorial limits of states that had uncertain borders. In many cases, the borders had been vaguely defined in Spanish legal documents, but hadn’t been delimited on the ground (Lalonde, 2002).

With the end of the Spanish Empire, Creole elites used uti possidetis to justify the incorporation of indigenous territories into the state system. At the time of the critical date of independence, Latin America was still largely occupied by indigenous peoples, and great swathes of land had not yet been fully explored by the colonizers. At independence, the Creole elite of Latin America had a choice—to draw boundaries based upon the previous colonial administrative divisions or to follow the ethnic and social divisions that existed prior to

44 colonization (Gilbert, 2006, p. 35). The Creole officials chose to uphold the colonial administrative divisions. These officials inherited much of the power of the colonial empire and to recognize anything else would have required a radical restructuring of power and authority.

Thus, it can be argued that the critical date of independence depends on a very selective reading of the historical record and a very selective understanding of international borders and boundaries. A consequence of the critical date of independence is that the colonial spatial order was privileged over indigenous spatialities. As a result, uti possidetis was implicated in indigenous dispossession, as people’s territorial entitlements were unrecognized and indigenous lands were incorporated within the boundaries of the newly decolonized states.

2.3.2 The scramble for Africa, African decolonization, and the principle of stability

Uti possidetis is based on a fixed image of the international state system. Uti possidetis de jure and uti possidetis de facto are ways of anchoring the borders of the international state system at a particular moment in time. The critical date of independence “freezes” the border in the colonial past (Burges, 2009). In the 1800s, at the time of Latin American decolonization, the Creole elites had to choose between retaining colonial boundaries or reverting to the precolonial indigenous spatial order based on ethnic divisions. The same dilemma was presented to African officials in the 1960s. As in Latin America, African state officials chose to respect European colonial borders rather than the precolonial territorial attachments of the indigenous communities. However, in Latin America, uti possidetis helped to define the territorial limits of states in which borders had been only vaguely defined in Spanish legal

45 documents but had not been delimited on the ground (Lalonde, 2002). In Africa, the states acceded to independence with the well-defined and recognizable borders that were drawn by the European powers as part of the 1882 “Scramble for Africa,” when at least seven European powers (Great Britain, France, Portugal, Spain, and later, Belgium, Germany, and Italy) had colonized and occupied huge tracts of African territory. Explorers and commercial representatives of the various European countries had entered into treaties or contracts with various indigenous chiefs and had obtained territorial and other rights over their territories.

The majority of African boundaries were delimited between 1884 and 1904, and the vast majority of the boundaries were defined using astronomical or mathematic criteria. The partition took place quickly and most delimitation agreements were negotiated before detailed knowledge of terrains and peoples was available (Lalonde, p. 106). At the time of African decolonization, African state leaders agreed to respect the geometric lines that had been drawn by the previous colonial powers, despite the fact that they were mostly artificial, that they were arbitrarily drawn by the European powers and that they were established in a historical context that many Africans found alien and demeaning (Shaw, 1997; Ratner, 1996). Some African political parties advocated for the readjustment of boundaries to take local realities into account, but the consensus on the part of postcolonial African leaders was to accept the uti possidetis de jure border lines as providing the territorial framework for the newly independent

African states. They appealed to the principle of stability and saw uti possidetis as a way of reducing violent border conflict and succession. While European colonists first drew the boundaries to reduce armed conflict among the colonial powers, the new African states

46 accepted these boundaries to reduce armed conflict among themselves. They also saw that the boundaries would reduce secessionist movements within national territories (Majinge, 2012).

With independence and the emergence of the African colonies as independent states,

African leaders understood that it would not be possible to abolish the entire colonial territorial framework and/or to systematically revise the existing boundary regimes (Lalonde, 2002, p.

116). The arguments provided in support of uti possidetis equated colonial boundaries with territorial stability, while borders drawn around geography, or around historic or ethnic ties, were subject to instability. Africa had already been divided into fixed, territorially bounded units. By appealing to the principle of stability, the new African states and the Organization for

African Unity (OAU) could claim that the borders pertaining to the “colonial heritage” had indeed been unjustly drawn, but that it was too dangerous to modify or change the borders. By accepting uti possidetis, the newly decolonizing African states accepted the idea that territorial identity was defined by the geographical legacy of colonialism. Precolonial territorial relationships were overridden. Indigenous lands were incorporated within the new postcolonial states. As in Latin America, the colonial boundary system became the territorial framework for

African independence (Majinge, 2012). By “freezing” state territorial titles at the critical date of independence, international law and the postcolonial African legal order was predicated on the denial of indigenous territorial rights and indigenous forms of territorial attachment. It ignored tribal understandings of boundaries, superimposing a European-style border regime on African frontier zones through which persons, peoples, clans, or tribes passed from one region to another. Unlike European boundaries, the original African borders shifted and changed, depending on to whom tribute was to be paid (Lalonde, 2002, p. 101).

47 2.4 The International Court of Justice, structural injustice, and colonial legalism

The spatiotemporalities of international law can be understood with respect to the

International Court of Justice (ICJ) and the concept of colonial legalism. The ICJ is the primary judicial organ of the United Nations and acts as a third-party mediator in the settlement of territory and boundary disputes between states. It adjudicates contentious cases (those that are brought before it by state parties to a dispute) and delivers advisory opinions on legal questions referred to it by the specialized agencies of the United Nations (UN). The ICJ was created in 1945 as the successor of the Permanent Court of International Justice (PCIJ). It differs from the International Criminal Court (ICC) in that the ICC is concerned with the criminal prosecution of individual persons for genocide, crimes against humanity, war crimes, and crimes of aggression. The ICJ has jurisdiction over UN member-states (and their governments) and adjudicates legal matters pertaining to sovereignty, land and maritime boundaries, natural resources, human rights, treaty violations, and treaty interpretations.

Article 1 of the UN Charter states that the institutional purpose of the ICJ is “to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.” The ICJ is an international court and its mandate is to settle disputes between states (and only states). While the jurisdiction of the ICC is over individual persons, the jurisdiction of the ICJ is over the individual member-states of the UN; that is, the ICJ is a state- centric institution. Article 34 of the ICJ Statute reiterates this point and holds that “only states may be parties in cases before the Court.” In other words, the ICJ does not accept submissions from “peoples” who are not otherwise organized into states. Under international law, territory

48 is defined as the land under a state’s control (including the state’s international adjacent waters, the airspace over these areas, and the material and natural resources the territory produces) (Dahlman, 2009). International boundaries delimit state territory and are indicative of the spatial extent of state power. The borders of the international system separate states and act as lines of contact. International boundaries are dividers that define the territorial framework within which state sovereignty is exercised (Prescott and Triggs, 2007).

Harvey (2009) explains that this vision of the international state system is underwritten by a notion of absolute space, which gives rise to an understanding of the state and its boundaries as exclusionary, fixed, and immoveable. Absolute space is the space of mapping and the space of individualization. It is the basic Cartesian grid within which state territories can be clearly identified in terms of the unique location they occupy on a map (Elden, 2014). The concept of absolute space can be seen in the ICJ’s rigidly spatialized conception of international law and international society that places a territorial definition of state sovereignty at its centre. This territorial definition “expresses in spatial terms the dimensions and sphere of application of the authority of States” and “provides the essential framework for the operation of an international order that is founded upon strict territorial division” (Shaw, 1997, p. 76). International society is made up of internally homogenous bounded states, each with a claim to territorial sovereignty, and each with a separate legal personality. Critics of this view hold that it is a spatialized conception of the international state system that normalizes and/or naturalizes the exclusion of nonstate actors from the international sphere.

49 The principle of uti possidetis is in keeping with the spatial dimension of the concept of colonial legalism. The ICJ’s definition of uti possidetis in the 1986 judgement on the boundary dispute between Burkina Faso and Mali provides an example:

International law and consequently the principle of uti possidetis—applies to the new

State (as a State) not with retroactive effect, but immediately and from that moment

onwards. It applies to the State as it is, i.e., to the “photograph” of the territorial situation

then existing. The principle of uti possidetis freezes the territorial title; it stops the clock,

but does not put back the hands.3

The hodge-podge of metaphors is interesting. Uti possidetis applies to the state as it existed on the day of independence. The territorial title and the international uti possidetis boundaries are

“frozen,” i.e., rendered inviolable on that date. The ICJ then uses the metaphor of a photograph that suggests the temporal context of an old snapshot. The critical date of independence is the date of reference at which the boundaries were first set and can be determined through archival evidence. The boundary lines are already there. In this sense, the doctrine “stops the clock, but does not put back the hands.” It stops the clock at the date of independence and recognizes state territorial claims at this date. It does not put the hands back, i.e., it does not recognize pre-independence territorial claims.

This is an example of how the spatialities of the international system inform what Lu (2017, p. 19) calls structural injustice. Lu (2017, p. 19) defines structural injustice as “the institutions, norms, practices, and material conditions that played a causal or conditioning role in producing or reproducing objectionable social positions, conduct or outcomes.” Structural injustices

3 Frontier Dispute (Burkina Faso/Republic of Mali) (1986). Judgment, I.C.J Reports 1986, sec. 31.

50 inform international law and practice, shape the design and purposes of institutions and social practices, and produce material effects. Structural injustices also enable, legitimatize, normalize, and entrench objectionable conditions (p. 35). This can be seen in the ICJ’s exclusion of indigenous peoples and their representatives from the boundary dispute adjudication process. The exclusion is rooted in the structural injustice of colonial origins of modern international law and doctrine.

An example of colonial legalism can be found in Article 38 of the ICJ Statute and the four sources of international law: international conventions (treaties) that are recognized by the contesting states; international custom (as derived from state practice); the general principles of law (as recognized by “civilized nations”); and judicial decisions (as articulated in the work of legal scholars and publicists). The language of the Statute shows evidence of colonial legalism in its reference to the law of “civilized nations.” The stipulation that the ICJ follow the legal precepts of “civilized nations” is an example of a structural injustice associated with colonial legalism that harkens back to the era of conquest and colonization. Indigenous systems of law were not considered to be civilized; likewise, the term “international treaties” does not include treaties made between states (or the preceding colonial powers) and indigenous peoples, it includes only treaties that have been concluded between states consisting of nonindigenous peoples. Indigenous treaties are considered to be relevant to the boundary adjudication process only to the extent that they provide evidence of state territorial and boundary claims.

This is an example of a structural injustice associated with colonial legalism. Fitzmaurice

(2017) notes that the ICJ’s Article 38 didn’t spring “from a vacuum” (p. 3). An almost verbatim version of Article 38 can be found in the 1920 Statute of the ICJ’s predecessor, the Permanent

51 Court of International Justice (PCIJ), which in turn was a codification of previous international practice. The ICJ is virtually identical to the PCIJ and the founding intent of the PCIJ remains intact: “namely to have an institution of the same essential kind as the one first conceived in

1920 … this was to be an institution for settling disputes, and by so doing it was to contribute to world peace” (Berman, 2013, p. 10). The ICJ takes its bearings from the PCIJ and the vision of international justice, international community, and international law that was articulated by the drafters of its Statute in 1920.

This means that the ICJ is constrained in its judgments. On the one hand, the ICJ—as with the

PCIJ before it—settles international disputes with the “hope of sustaining peace through international adjudication and law” (Berman, 2013, p. 3). On the other hand, the disputes are settled with reference to international legal principles embedded within colonial legalism.

Customary international law and customary state practice appeal to precedent and previous judicial decisions, so the ICJ refers frequently to the doctrines of the colonial past. For some theorists, the ICJ is a progressive institution, but only in the narrow sense that it contributes to the development of increasingly more refined methods of settling disputes (Berman, 2013).

Legal development occurs only as “a collateral side effect” of the adjudication process. The point of the ICJ is to “produce a fair and objective reasoned solution to the particular dispute in front of it … rather than as being seen to seize the opportunity to shape or develop the law”

(Berman, 2013, p. 11). Thus, even when the ICJ’s analysis of legal rules influences the course of the law, the development of the law has been seen “a by-product of the Court’s settlement of the case, not an end in itself” (p. 11).

52 The general consensus is legal circles is that the ICJ does not develop international law in any significant way and that that any notion of development is based on the faith that the mainstream legal community places in “the progressive promise of international law” (Burges,

2009, p. 17). Berman (2013) argues instead that the ICJ is “a reactive organ” and “has no programme of its own but exists to handle such cases as the chance winds of external happenings blow before it” (p. 10). That said, even if the ICJ is not consciously an agent of development or change in any purposive sense, its very existence does exert some influence on international law: “One does not need to look on the ICJ’s individual judgments (still less its advisory opinions) as somehow sacrosanct tablets of stone in order to grasp that a substantial body of reasoned decisions, reached on the basis of careful fact-finding, published in an accessible way, and widely discussed and commented on, is bound to have an effect both on the system of international law and on its substantive content” (p. 21).

2.4.1 Intertemporal law, precedent and temporal inertia

The Statute of the ICJ is for all intents and purposes unamendable and, as Berman

(2013) argues, the ICJ is “essentially conservative.” All courts are conservative, but the ICJ even more so as a result of the intertemporal element of many of the disputes it decides.

Intertemporal law requires that the ICJ evaluate the issues in front of it “in light of the law as it stood at the relevant time,” which “is an effective neutralizer all on its own of latent temptations to evade the stricture against rendering judgment sub specie legis ferendae” (i.e., with the intent to improve the law). Intertemporal law “reclaims the past for the future.” (p.

53 11). The ICJ’s position on intertemporal law was defined in the Islands of Palmas Case of 1928, which stated that “a juridical fact must be appreciated in the light of the law contemporary with it, and not of the law in force at the time when the dispute in regard to it arises or fails to be settled.”12 Intertemporal law requires the ICJ to apply the law of the past, even if the relevant legal rules have since evolved or have changed. It means that the law, rules, and principles surrounding territorial title cannot simply be overruled: “Otherwise chaos would prevail, and an international legal system based on the rule of law would lack the constitutive element of legal certainty” (Kotzur, 2008).

Another important concept from a temporal perspective is that of precedent. Precedent at the ICJ allows for a dispute in 2017 to be resolved by referring to cases from 1817 or even

1217, even though the past is past and is qualitatively different from the present. The ICJ consults past cases that have a similar set of facts and that employ a similar set of legal rules.

The purpose of precedent is to provide predictability, stability, fairness, and efficiency to the boundary dispute adjudication process. Precedent is a matter of legal justice in which similar situations are treated similarly, guaranteeing the equality of treatment between cases and ensuring that legal decisions are not arbitrary. At the same time, the constant referencing of precedent prevents any meaningful change to the structure of the international system. The doctrine of precedent is opposed to legal transformation and prevents the law from changing.

The law is therefore insensitive to new demands within society (Guillaume, 2011).

Khan (2009, p. 85) argues that precedent in law is best understood in relation to the principle of temporal inertia. The law maintains temporal inertia by resisting change or by

12 Island of Palmas Case, (United States/Netherlands), ICJ Reports 1928, p. 845.

54 refusing to acknowledge change; this situation assures that circumstances will remain the same or will be minimally altered over a long period of time. The constant reference to the past via precedent is part of the law’s task of fortifying the status quo. As Khan (2009, p. 86) argues, temporal inertia (resistance to change) is in fact “law’s core attribute.” It ensures the systemic stability of law. Law is supposed to provide stable rules that do not change over time. Temporal inertia preserves existing laws against durational changes and also resists the formation of new laws. Temporal inertia allows international law to act as a barrier against social, economic, and political change and development. Even if two cases are widely separated in time, precedent dictates that past cases determine the outcome of the present case. The notion of a timeless precedent binds present and future generations to the normative preferences of past generations. In this sense, intertemporal law is also an example of the temporal inertia of the international state system. It is precisely this temporal inertia that renders the ICJ incapable of dealing with the historical and spatial injustices associated with colonialism.

2.5 Spatial justice, historical and structural injustice

The law-space-power nexus of critical legal geography shows that legal institutions, conventions, and practices reinforce hierarchical sociospatial relationships. It also shows that power is unequally distributed within these legal institutions, conventions, and practices.

Delaney (2016) considers that critical legal geography’s focus on domination, exploitation, marginalization, and alienation is not only about power and power relations, however, but also about justice and injustice. Legal geographers who investigate the contingencies and

55 constraints of spatial justice are convinced that the research into asymmetries of power leads to “the inference that these asymmetries are not simply interesting but unfair and unnecessary.” In other words: “They are wrong” (p. 271). Critical legal geography shows how asymmetries of power relate to conventional spatiolegal imaginaries and how they in turn

“invisibilize injustices, obscure the contingencies and causes of injustice, and uncouple injustice from responsibility.” (p. 271). Along with border studies and political theory, legal geography takes us “into the workshops where space, law and (in)justice are the means of the co- production of each other” (p. 272) and shows how (un)just geographies are made and un-made through law and legal discourse.

Spatial justice first developed within the context of urban geography and debates over the right to the city (Soja, 2010, p. 1). The concept has applicability at an international scale and with some adjustment can be applied to debates over territorial justice (Sultana, 2017, p. 132).

According to Williams (2013, p. 4), spatial justice is “first and foremost an analytical framework that foregrounds the role of space—a set of material and ideological relations that act on, yet are formed by, social relations—in producing justice and injustice” (p. 4). The problem, however, is that spatial justice has “grossly oversimplified the deeply contested character of justice” (p. 4) and that a theory of spatial justice must account for both a theory of space and a theory of justice. While most geographers do well with the theory of space, they tend to leave the theory of justice undefined. For that reason, Williams (p. 4) suggests that spatial justice theorists examine theories of justice by asking after the kind of space that is deployed in a particular theory of justice and also by asking how that understanding of space influences a proposed theory of justice.

56 Legal geographic research into spatial justice research asks after the spatial aspects of claims to injustice, inequality, and the uneven distribution of resources or harm (i.e., environmental justice) via legal processes (Jeffrey, 2016). Legal geographic research investigates the legal mechanisms used to address injustice and resolve conflict, which in turn can be related to structural approaches to contemporary international justice. The structural approach holds that colonial injustice is not only historical but also relies on contemporary social and political norms, institutions and structural processes that produce and reproduce injustice in the present. Lu (2017) distinguishes between structured and structural injustice.

Structured injustices are committed or produced by individuals in their roles as individual or corporate agents, whereas structural injustices consist of “unintended, generalized, or impersonal harms or wrongs that result from social structural processes in which many may participate” (p. 118). Colonial injustices are the products of a colonial international order that produces and reproduces various structural injustices. These injustices are embodied in institutions, discourses and practices, some of which are today based on morally unacceptable values or belief systems. The structural account of colonial injustice therefore acknowledges the legalization and normalization of colonial practices: “Colonial injustice, like most political, social, and economic injustices that affect large categories of people, involve not simply wrongful acts by individual or state perpetrators but rely on social structures and structural processes that enable and even encourage individual or state wrongdoing, and produce and reproduce unjust outcomes” (p. 126).

The structural approach clarifies the relationship between colonial structural injustice, precedent and intertemporal law. Lu (2017) shows that the structural approach enables us to

57 see historic colonial injustices as contemporary injustices that contemporary agents reproduce in their contemporary relations. With precedent, the ICJ consults past cases that have a similar set of facts and that employ a similar set of legal rules, even though the past is past and is qualitatively different from the present. Intertemporal law is the doctrine that contemporary boundary disputes should be decided with reference to the law that was in effect when the boundary dispute first arose. Both are examples of structural injustices of colonial legalism in that they require that the ICJ apply the law of the past to present cases, even if the relevant legal rules have since evolved or changed. The temporal inertia built into precedent and intertemporal law renders the ICJ incapable of dealing with the historical and spatial injustice of colonialism. ICJ jurisprudence reproduces the defects of past judgments in contemporary contexts, which in turn creates new injustices that take shape in new contexts.

2.6 Conclusion

Critical legal geographers argue that the conventional understanding of the modern territorial state—as a container of society, as an idealized, fixed entity, and as rigidly defined with reference to territorial boundaries—fails to account for the complexity of the international system. It fails to account for the territorial claims of indigenous peoples and other ethnic and minority groups. Indigenous peoples are excluded from the ICJ boundary adjudication process, such exclusion being a product of the structural injustice of colonial legalism. My argument is that the structural injustices of colonial legalism inform the legal reasoning of the International

Court of Justice (ICJ) and that these injustices shape and are shaped by the spatialities and

58 temporalities associated with colonial legalism and the modern geographies of international relations. The colonial legal order was founded on indigenous dispossession. The structural and spatial injustices of colonial legalism are entrenched in the international legal system, as it continues to view indigenous peoples as being inferior vis-à-vis the (post)colonial states into which they and their lands were incorporated. In this sense, much of international legal discourse remains tied to “socially oppressive constructions of civilization, modernity, race, class and gender” (Lu, 2017, p. 36).

Critical legal geography and border studies call into question what Delaney (2016, p. 4) calls “the imagined relationship of international legalities to the foundational legal and political principle of sovereignty.” The spatial concept of state in international law, and its relationship to the legal principle of uti possidetis de jure, also show how a “modernist idea of territory”

(Murphy, 1990) has implications for the exclusion of indigenous peoples from the boundary dispute proceedings of the ICJ. When the ICJ does address legal issues involving indigenous peoples, it does so only as a by-product of its concern with state territory and state boundaries.

State-based definitions of territory, the spatial assumptions of the modern state system, and the exclusion of indigenous peoples from ICJ proceedings are interconnected. The distinction between statist and non-statist accounts is nevertheless important insofar as it enables us to consider the problem of adjudicating between rival claims to territory. The distinction also helps us to consider the question of “drawing a better line” around political units, be they states, nations or peoples.

59 CHAPTER THREE: THEORETICAL FOUNDATIONS OF INDIGENOUS TERRITORIAL CLAIMS

3.1 Introduction

This chapter outlines the different theoretical grounds on which indigenous peoples may claim a right to have standing in international law with respect to territorial disputes that affect them. The first section looks at historical entitlement arguments. Historical entitlement arguments hold that a group’s past connection to a territory justifies the group’s possession of the territory in the present (Meisels, 2009). The principle of first priority maintains that territorial title is derived from first possession or first occupation (“we were here first”), while indigenous concepts of time immemorial holds that indigenous title derives from a combination of first priority and continuous occupation. The second section discusses remedial territorial claims that hold that a group has a right to secede if it has from suffered certain historical injustices, which in indigenous cases can include anything from an unjust seizure of territory to severe human rights violations (including genocide). Remedial claims include corrective justice claims that aim to remedy historical injustice, using restitution and other measures as means of reconciliation. The section on remedial claims also examines treaty rights arguments and the contention that the best way to rectify colonial treaty violations that extinguished indigenous territorial rights in the past is to have those rights reinstated in the present. The third section of the chapter examines nonremedial claims, including both cultural integrity arguments and arguments in support of self-determination. Cultural integrity arguments hold that territorial rights are necessary for the cultural survival of indigenous peoples as distinct peoples and

60 nations. The final section discusses indigenous self-determination and self-government (define) as officially understood by the Universal Declaration of the Rights of Indigenous Peoples (2007) and aims at highlighting the implications of UNDRIP for indigenous territorial rights and state bordering practices in relation to concepts of international political justice.

3.2 Historical entitlement arguments for indigenous territorial claims

Historical entitlement arguments claim that a connection to a territory in the past justifies a right to that territory in the present. The French are entitled to the (historic) territory of France; the Quebecois have a right to the (historic) territory of Quebec; the Cree have a (historic) right to the territory of the Cree. Nationalist versions of historical entitlement arguments hold that the nation has a right to its historical territory or “homeland.” There is a special relationship between the territory of a nation and its people as national identity is rooted in a concept of place and is developed over time and through history (Meisels, 2009, p. 32). Historical entitlement claims can be divided into territorial claims based on priority of occupation and territorial claims based on the duration of the claimants’ occupation (Burghardt, 1973). Priority claims derive territorial rights from first occupancy (we were here first), while claims of duration appeal to the passage of time and the development of formative ties that bind a group to its particular territory (Sumner, 2004). The idea with the latter is that a people or nation have a historical right to a territory because they have been there the longest (Kingstone, 2016) is in keeping with the nationalist-identity theory that nations are justified in claiming rights over territories that were historically central to the nation’s development (Stilz, 2011). A related

61 argument is the nationalist-settlement argument, which involves a claim that the nation who settled the land have added value to the land over time via the construction of physical infrastructure. The national culture is imprinted on the settled territory and the nation’s cultural significance is embodied in its public spaces and infrastructure (Miller, 2007).

The problem with the “we were here first” argument is that it rests on claims about the past that are difficult and sometimes impossible to verify, that is, it is not always possible to prove that a particular nation or group was the first to possess a particular territory. The second problem with this argument is that it is not clear why territorial rights ought to be granted to the peoples who first occupied a territory, especially if that occupation occurred in the distant past (Waldron, 2003; Meisels, 2009). One way of understanding the “we were here first” argument is through Lockean (or Nozickian) property claims that hold that first occupancy is the starting point of a historical chain of entitlement that proceeds through principles of legitimate transfer. The first occupant is accorded moral privilege and has priority over anyone whose occupancy was later obtained through war and violence. The principle is a form of justice-in- transfer and assumes that a nation or a people gain historical entitlement to their ancestral territories by virtue of being the first humans to occupy them. However, this position is limited in that it is based on an overly simplistic understanding of liberal property morality in that it confuses property in land with the jurisdictional concept of state or national territory, which itself is not reducible to a property right (Bennett, 2005, p. 81).

62 3.2.1 Time immemorial

Indigenous versions of historical entitlement take a form different from the versions provided by established nation-states. Indigenous peoples cannot rely on international legal concepts of occupation and historic title, as these concepts apply only to established states.

Strictly speaking, indigenous peoples cannot rely on international versions of “we were here first” arguments either because indigenous peoples are not considered to be sovereigns in international law. Instead, indigenous “we were here first” arguments appeal to the concepts of time immemorial, and function as proxies for larger claims about self-determination, as opposed to claims based strictly on liberal property morality and the theory of possession

(Bennett, 2005, p. 84). Indigenous concepts of time immemorial combine historical priority

(first occupancy) and duration (ongoing occupancy) and hold that indigenous peoples have a right to their ancestral lands because they were there first and because they have continuously inhabited their lands since time immemorial, i.e., since the time before recorded (legal) history.

Time immemorial specifies that indigenous peoples have a claim to jurisdiction over their territory and their peoples, they have a right to govern themselves according to their own customs and laws, and they have a claim to have a “nation to nation” relationship with the state as a political entity.

Some caution must be taken with the term “time immemorial.” Weir (2013, p. 384) suggests that time immemorial is “a term of art and legal fiction” whose meaning changes depending on the group who makes the claim and according to whom the claim is made against. Black’s Law

Dictionary defines time immemorial as a point in time in the past “that was so long ago that people have no knowledge or memory of it.” The legal concept that time immemorial refers to

63 “beyond legal memory” is linked to the English property law doctrines of prescription and adverse possession. Prescription refers to the acquisition of a property through continuous use over a period of time, whereas adverse possession refers to exclusive control of the property that gives rise to prescription and hence to property rights (Hausmaninger and Gamauf, 2003).

In Weir (2013), this (legal) dictionary definition is linked to settler-state understandings that serve “the rhetorical and legal agendas of colonization” by locating indigenous peoples somewhere “outside settler legal memory” (p. 389).13 In settler societies, time immemorial was used by the government to refer to indigenous populations that existed prior to having their lands incorporated into the state system (Perry, 1996, p. 8). Time immemorial is “literally prehistoric” and refers to a time beyond memory and before written history (Klein, 1997). The term separates the claims of those who have a history from those who do not have a history

(i.e., those who have writing from those who do not have writing), that is, the claims of those who are “civilized” are separated from the claims of those who are “uncivilized.”

Barrett and Strongman (2010, pp. 4-5) argues that the settler-state concept of time immemorial produces the notion of a timeless indigenous culture that exists outside of historical time and allows settler societies to view indigenous peoples and their culture as

“frozen” and “taken out of time,” consigning them to a fictitious premodern past (see also

Battiste and Youngblood, 2000, p. 33). Indigenous peoples, on the other hand, use the term time immemorial to signify that aboriginal nations have inalienable territorial rights that

13 One early example of the concept’s use in law can be found in the rulings of The Supreme Court of the United States in Cherokee Nation v Georgia 30 US 1 (1831) and Worcester v Georgia 31 US 6 Pet 515 (1832), where the Supreme Court specifically stated that “the Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights as the undisputed possessors of the soil from time immemorial …”

64 predate the colonial legal order. Indigenous rights are justified on the grounds that they have continuously occupied their lands from “the beginning of time” onward (Perry, 1996, p. 8). In this way, time immemorial counters the statist notion that indigenous territorial rights are given (bequeathed) to aboriginal peoples by a beneficent government. Time immemorial represents the long-standing spiritual and cultural connection that indigenous peoples have to their lands. Indigenous peoples see their relationship with the land in terms of responsibilities, not rights. Finally, time immemorial describes the cyclical nature of indigenous worldviews—

“life and time are not linear, moving from and toward, but are circular and all-inclusive” (Perry,

1996, p. 8).

An example of indigenous understandings of time immemorial comes from a hearing order published in 2015 by the Matsqui People of British Columbia. The hearing order addresses the impact of the Trans Mountain Pipeline Project on Matsqui territory. The Matsqui’s offer legends and stories (sxwõxwiyám) as proof that “the ancestors of the current Matsqui people have occupied and used Matsqui territory since time immemorial.” For the Matsqui, the legends of sxwõxwiyám “define the geographic extent of Matsquis’ core territory” by providing “important insights into the way that Matsqui people (both contemporarily and in the past) regarded themselves and were regarded by others” (Historical Land Use, Territory and Aboriginal Title of the Matsqui People, 2015, p. 5). The oral histories support the claim that present-day Matsqui are “the descendants and inheritors of the ancient occupants who first used and governed the resources of their territory in time immemorial” (p. 9). The sxwõxwiyám stories are confirmed by archaeological and linguistic evidence, which for the current Matsqui confirm that they are

65 “the inheritors of lands and territories that have been continuously occupied for millennia” (p.

6).

3.3 Remedial claims: Corrective justice and treaty violations

Remedial claims seek to remedy injustices. Regarding secession and self-determination,

Buchanan (1997) defines “remedial right only” theories as those that assert that “a group has a right to secede if and only if it has suffered certain injustices, for which secession is the appropriate remedy of last resort” (p. 35). A group has a right to secede from a state if the physical survival of its members is threatened by the actions of the state, or if its previously sovereign territory was unjustly taken by the state. Primary rights theories, in contrast, assert that certain groups can have a general right to secede in the absence of any injustice. Buchanan

(1997) also distinguishes between ascriptive group theories and associative group theories (p.

37). Ascriptive group theories are based on the principle that every nation or people is entitled to its own state. Ascriptive group theories accrue to groups whose members are defined by non-political, ascriptive characteristics (people, race, ethnicity, religion). Ascriptive characteristics exist independently of any actual political association that the members of a group may have forged. The agent is a nation or a people who have a common culture, history, language, sense of its own distinctiveness, and shared aspirations for its own political unit.

Associative group theories, by contrast, do not require that a group has any ascriptive characteristic in common such as ethnicity or an encompassing culture. The focus is instead on voluntary political choice.

66 An example of an ascriptive, remedial claim can be found in indigenous appeals to corrective justice and the call for the reinstatement of indigenous territorial rights. Indigenous nation’s territorial rights were wrongly taken away. The remedy is to be found by restoring the original territorial rights to the indigenous nation as well as restoring their historic status as a sovereign polity. According to Kymlica (1999, p. 285), however, very few indigenous communities today want (or ever wanted) the kind of sovereignty that Western states claim. Claims based on historic sovereignty are only appropriate if the aim is to establish an independent state. If the aim is instead to rearrange the terms of integration within existing states, then a concept of indigenous self-determination that sets limits on state sovereignty is needed. It is now generally accepted that indigenous peoples “seek to modify existing notions of self-determination to accommodate the fact that they do not seek their own state” (Kymlica, 1999, p. 285). This requires a more modest account of what self-determination means. Rather than focus on independent statehood, the focus is on claims to self-government and autonomy within the existing system of states.

Moore (2000) argues that remedial theories (just-cause theories) are inspired by nationalist argument and nationalist mobilization, and that they appeal “to a concept of boundaries that ignores nationalist lines of division.” (p. 226). Nationalist remedial theories are predicated on essentialist notions of the relationship between nation or people and the land. They also presuppose that the nation or people is somehow “taking” land that belongs to the larger state.

The argument is based on the dubious analogies between the relationship of state to territory and the relationship of the individual to his or her private property-holding. These analogies are problematic because the state or the group wishing to secede does not own the territory:

67 “Territory simply refers to the domain of jurisdictional authority, to the geographical area in which self-government operates” (p. 225).

3.3.1 Corrective justice

In cases of indigenous rights, the facts of colonialism (genocide, dispossession) and corrective justice come into play. These claims assert that indigenous peoples have been unjustly dispossessed from their lands. Corrective justice requires that the injustice be corrected, that is, that the indigenous peoples be given back their rights to the territories they were dispossessed from. Corrective justice is a way of correcting historical injustice and uses restitution to give “back whatever it is that has been unjustly taken” (Moore, 2015, p. 140). It is a remedial claim based on the fact of prior possession and subsequent wrongful dispossession.

In nationalist versions, the nation or people consider themselves the legitimate owners of a territory that was subsequently taken away from them through either force or fraud. The nation or people dispossessed consider that the territory ought to be returned to them

(Meisels, 2009). States also use these arguments when they claim to be taking (retaking) lands that have been wrongfully seized or appropriated from them in the past. Murphy (1990, p. 532) criticizes statist versions, arguing that they are a rhetorical ploy on the part of expansionist states. From this perspective, statist corrective justice claims have more to do with economic advantage than with reparations or restitution.

In the statist, nationalist and indigenous versions, the purpose of corrective justice is to rectify a wrong done to a victim. It is a backward-looking conception of justice. The historical

68 injustices associated with colonial dispossession are, for instance, deemed morally relevant to the present. Aboriginal corrective justice holds that indigenous peoples are justified in reclaiming their territory on the grounds that it had been taken away through fraud and by force (Ahren, 2016). The historical (and spatial) injustices associated with colonial dispossession in the past necessitate restitution of territorial rights in the present. Indigenous peoples were the original inhabitants of the territories in question and the territories were unjustly taken from them. Corrective justice maintains that if indigenous peoples are the legitimate owners of the land in question, then they are entitled to reclaim the territory from the present possessors of the land. It is a backward-looking theory of justice in that it demands at least partial restitution of a state of affairs that existed at some point in the past. The argument combines historical grievance with a theory of legitimate acquisition in that it presupposes the group legitimately possessed the territory and also that the land was illegitimately expropriated

(Meisels, 2009).

From a structural view of corrective justice, however, remedial responsibilities toward indigenous peoples do not derive form historical injustice per se but rather from the contemporary burden of historic injustice. Corrective justice is predicated on a theory that distinguishes between indigenous claims and other minority rights claims. Unlike minorities, aboriginal peoples are entitled to their own forms of government because they were here prior to colonial settlement and were wrongly dispossessed from their lands. The structural approach acknowledges the specifics of the injustices suffered by indigenous peoples, but does not seek to remedy historic injustice. It instead seeks to remedy the production and reproduction of these injustices in the present.

69 3.3.2 Treaties and treaty violations

The ICJ understands international treaties are contractual agreements that are concluded between states (or between states and colonial powers) in written form and include conventions, agreements, protocols, pacts, and charters. In boundary dispute cases, they are modelled after private contracts and are used to demonstrate the consent of the contracting parties to respect the positioning of a particular border line. Treaties also constitute factual evidence of how borders may have stood at a particular time (Fitzmaurice and Quast, 2007).

According to Sumner (2004, p. 1783), treaty claims are the easiest claims for states to prove.

They are also “more legal in nature” and “less emotionally persuasive” than historical entitlement and corrective justice claims. As in private contracts, treaties between states impart duties of good faith and fair dealing based on a relationship of trust and respect. They are based on the principle that no country or people has a right by force or fraud to assume sovereignty over another nation (Asch, 2014, p. ix).

The position of the International Court of Justice (ICJ) on treaties between the colonial powers (or states) and indigenous peoples is that indigenous treaties are no more than factual evidence of the boundary line location. From an indigenous rights perspective, on the other hand, indigenous treaties provide legal foundations for self-determination claims based on the recognition of the status of indigenous peoples as nations who possess cultural and political sovereignty over their traditional lands (De Grieff, 2006). Treaties at the time of colonization were concluded between European powers and indigenous populations as part of the law of nations. Colonial treaties were international treaties between sovereign nations that were originally designed to secure alliances of peace and friendship. The validity of treaties is derived

70 from the consideration that indigenous nations were sovereign actors under international law

(Gilbert, 2006). Thus, the treaties of the colonial powers with indigenous peoples and the treaties of the colonial powers with foreign states shared a common status under colonial international law. In both cases, the treaties were negotiated between separate political sovereigns and were designed to secure the mutual advantage of both members of the alliance

(Tsosie, 2000).

Treaties offer a justification for recognizing the rights of self-government on behalf of aboriginal peoples. Treaties signal that indigenous peoples are distinct and autonomous peoples. The historical treaty-making process between First Nations peoples and Canada, for example, reflects a relationship of equality between the aboriginal peoples and the Europeans.

According to Macklem (1995, p. 20), the normative significance of treaty-making lies in the principle of consent and suggests a mutual recognition of the respective political authorities of the parties: “The actual fact of treaty-making provides additional historical support for normative claims based on social contract theory concerning an aboriginal right to self- government” (p. 21). Treaties are not the only source of aboriginals’ rights to self-government, but “the process of negotiating treaties serves as evidence that the Crown historically treated indigenous nations as sufficiently autonomous to warrant treaties” (p. 197). In Canada, treaties provide evidence that aboriginal peoples were (and were regarded by the Crown as) self- governing communities: “The treaty-making process signals that aboriginal nations enjoy a right of self-government, and the Crown has recognized this fact” (p. 197). Problems with treaty rights, however, are that treaties are open to interpretation and have in fact been used to strip aboriginal peoples of their rights. Treaty language is also not systematized across treaties and

71 furthermore not all indigenous groups even have treaties. This means that the nature and scope of treaties would vary from indigenous nation to indigenous nation, resulting in

“checkerboard justice” (p. 196).

From a corrective justice perspective, indigenous peoples are entitled to claim certain collective group rights because indigenous peoples were present prior to colonial settlement and because of treaty promises made by the colonizer. The claims for corrective justice and restitution come from the fact that the terms of the colonial-indigenous treaties were disregarded by the colonizers creating an abrogation of one of the basic principles on which international law stands—the principle of pacta sunt servanda, i.e., that states are bound to keep their word (Gilbert, 2006). In some cases, the colonial powers held that the treaties were proof that indigenous peoples consented to the transfer of their lands. The treaties were binding contracts guaranteeing colonial powers the right to sovereignty over indigenous territories. The treaties indicated the consent of all parties and ensured the legal transfer of indigenous lands from one sovereign power to another. The purpose of the treaties was to give proof of occupation to the colonizers and to provide indigenous communities the rights of independent nations. Discourse on contemporary treaty rights is rooted in the broken promises of the colonial powers to fulfill their treaty obligations to respect the land and cultural rights of indigenous populations as nations (Tsosie, 2000).

Colonial treaties are important from the perspective of corrective justice as they contain the obligations of present-day states to the descendants of the indigenous peoples who were unjustly dispossessed by the colonial powers. From a corrective justice perspective, the treaties between indigenous peoples and colonists show that indigenous communities once were

72 endowed with an international personality and once possessed territorial sovereignty over their lands (de Grieff, 2006). The treaties show that the colonizers at least implicitly recognized the validity of indigenous legal and political organization. Corrective justice activists argue that because contemporary states are their heirs to the colonial powers, they ought to recognize the obligations embedded in the colonial treaties. States, and the international community as a whole, ought to honor their promises to respect the land and cultural rights that were unjustly incorporated through colonial conquest. Thus, treaty rights support the recognition of indigenous peoples as sovereign peoples (or nations) who possess political and cultural sovereignty with respect to the traditional lands.

Treaty rights are now domestic matters, as a result of what Gilbert (2016, p. 44) calls the

“process of retrogression” that occurred in the nineteenth century. Indigenous nations went from actors under international law to “domestic dependent nations,” with the treaties concluded between indigenous peoples and colonial powers no longer having international character. States unilaterally changed the nature of treaties from international treaties to domestic treaties. Colonial treaties are now dealt with internally and are primarily of domestic value. This process of domestication means that indigenous people were deprived not only of their territory but of their recognized capacity to enter into international agreements. Duthu

(2013) points out that the relationship between indigenous citizens and the state is currently tantamount to that of ward and guardian, a relationship that courts an antiquated language of dependency and protectionism that works to suppress (spatio)legal pluralism, the recognition of multiple systems of law in one location.

73 This leads to arguments for restitution on two levels. The first level concerns the reinstatement of indigenous peoples as sovereign nations under international law. The second concerns the reinstatement of territorial sovereignty as enshrined in the colonial treaties. The argument is that the colonial powers did not meet their obligations in the treaty instruments.

From a corrective justice perspective, this implies that contemporary states should now honour such obligations as a way of rectifying historical injustice. This would entail the reinstitution of indigenous territorial rights and indigenous sovereignty with respect to indigenous lands that existed at the time of colonialization. The restoration of indigenous rights to territory could be accomplished by recognizing indigenous peoples as sovereign peoples. The latter endeavour might envision a regime of shared governance (indigenous and state) on commonly occupied territories: “It would take in the modern era of tribal self-determination in which federal, tribal, and state political actors work actively and cooperatively with each other, mindful of but not shackled to the history of colonialism, to develop workable and complementary systems of tribal governance that address the vital needs of their communities while also respecting the normative values and interests of the broader federal polity” (Duthu, 2013, p. 158). The project of tribal self-determination rejects the legal centralism of the colonial worldview, arguing that it remains “mired in the mulch of colonialism” and serves as a “regressive, crippling agent to the project of tribal self-determination” (p. 158). This implies that we ought to situate native rights within the paradigm of legal pluralism, that is, the idea that multiple legal systems can coexist peacefully within shared territories.

74 3.4 Nonremedial territorial claims: Cultural integrity arguments

Historical entitlement arguments such as time immemorial state that past occupation of a territory justifies present occupation of that territory. Indigenous remedial claims justify self- determination on the grounds of past injustice and harm. Remedial claims include corrective justice claims that seek to remedy the injustices of the past in some way. Nonremedial claims do not seek to remedy past injustice. They include primary rights theories, which assert that indigenous (and other) groups have a right to secede, even in the absence of injustice. Cultural integrity arguments for indigenous territorial claims are nonremedial, however. Cultural integrity arguments acknowledge indigenous peoples’ distinct cultural identity as the original inhabitants of lands that were conquered by European nations. Cultural integrity holds that colonial conquest and dispossession are factors in present-day social arrangements, but it does not make a backward-looking claim to restitution. Unlike some restitution arguments, cultural integrity arguments do not try to re-establish the status quo that existed prior to dispossession.

Nor is it a question of redressing past harms. The issue instead is the present and future protection of indigenous peoples and their way of life (Lenzerini, 2011).

Cultural integrity arguments recognize and respect culture differences; cultural integrity arguments embrace traditional livelihoods and understand that traditional lands and natural resources are intrinsically connected to indigenous peoples. Land rights for indigenous peoples represent the right to a means of livelihood that provides a reasonable level of sustenance

(Gilbert, 2007). To deny an indigenous group their lands is to threaten their existence as an indigenous group; to protect their rights to culture and to land is to protect them from cultural genocide, meaning that Because indigenous peoples’ traditional cultures and ways of life are in

75 need of protection, indigenous peoples are “endangered peoples” (Vasquez, 2002). From this perspective, territorial rights are necessary for the present and future survival of indigenous peoples as distinct groups and nations because land constitutes the indigenous cultural identity.

For indigenous peoples, cultural rights and land rights are virtually identical (Tsosie, 2000).

Cultural integrity also involves the preservation of indigenous language, art, music, and dance. The latter cannot be preserved without also preserving land and territory. This is because land and territory hold the resources that sustain the indigenous ways of life (Gilbert,

2007). To recognize indigenous peoples’ cultural claims is to recognize their territorial claims and vice versa. Land rights are essential to the physical, cultural, and political survival of indigenous peoples. Indigenous peoples have socially and culturally significant spiritual ties with their ancestral lands; access to their territories is necessary for cultural expression and for the social reproduction of the group (Botterell, 2013). The transmission of land across generations is an expression of tribal unity, as an ongoing spiritual connection to the land forms a fundamental element of indigenous identity and community (Duffy, 2008).

Critics of cultural integrity arguments complain that the arguments are based on an essentialist notion of culture. These critics assume that cultural heritage is an object, or a good, that is valuable because of its potential to be consumed or used (Holder, 2008). Coombe (2009) posits that the cultural heritage argument understands culture as a noun, “not just grammatically but in its very essence” (p. 12). The cultural heritage argument views culture as composed of objects and bundles of properties that can be recognized, enjoyed, possessed, maintained, disseminated, and preserved. For Kymlica (2003), this leads to an essentialized view of indigenous peoples and their culture that “rooted in a premodern way of life that needs

76 protecting from the forces of modernization, secularization, urbanization, ‘Westernization,’ and so on.” Grounding territorial rights in traditional culture can lead to cultural and political isolation, rather than cultural and political self-determination (p. 291). Essentializing cultural integrity can be problematic from a self-determination perspective in that it can lead to an outlawing of natural resource extraction and other activities that compete with indigenous people’s traditional livelihoods (Patten, 2014). However, maintaining, respecting, and developing cultural integrity does not mean returning to a pre-Columbian past, but instead entails raising standards of living and making more resources available in the present and for the future (Smith, 2000, p. 16).

3.5 UNDRIP: Self-determination and self-government

Claims based on self-determination are based on the belief that all peoples (indigenous or nonindigenous) are entitled to control their own destinies, which includes having control over their land and over their resources. Corntassel (2008, p. 106) defines indigenous self- determination as self-government that is “economically, environmentally, and culturally viable and inextricably linked to indigenous relations to the natural world.” According to Article 3 of the United Nations Declaration of the Rights of Indigenous Peoples, self-determination means that indigenous peoples have the right to “freely determine their political status and freely pursue their economic, social and cultural development.” Self-determination is the right of a people organized in an established territory to determine its collective political destiny. It can take many forms, ranging from local autonomy to political independence. It can refer to

77 degrees of autonomy within a national community and can also take on connotations of statehood at an international scale (Ayana, 2004). The two types of political self-determination are constitutive self-determination and on-going self-determination (Buchanan, 2003). A group with constitutive self-determination has the power to choose its political status, for example, in a referendum. Constitutive self-determination provides a people with the ability to choose independence, secession, confederation, or political autonomy through either devolution of territory or through other constitutionally protected means (Moore, 2003). By contrast, ongoing self-determination is synonymous with self-government. Ongoing self-determination refers to the right of a people to be collectively self-governing. Self-government is not sovereignty as sovereignty involves the powers associated with states, including the power to use of coercive force (Buchanan, 2003).

An indigenous territorial state may be the goal of some groups, however, ongoing indigenous self-determination (self-government) is possible within the framework of national political institutions. Indigenous self-government encompasses a wide range of political forms, from minimal to maximal control over what is typically managed by the state. There is a large set of self-government arrangements that can be made, including cross-border/cross-boundary management. Indigenous self-government requires that aboriginal peoples exercise independent control over their traditional lands, and that they are able to wield political power in their own right and for their own purposes (Kalman, 2013; Buchanan, 2003). Self-government also entails economic self-determination: Self-government based on territorial rights enables indigenous peoples to pursue a range of strategies for economic development; indigenous

78 peoples are better able to achieve their socioeconomic objectives when they have greater control of activities on their traditional lands (Schiveley, 2000).

3.5.1 UNDRIP Articles: Land, territory and borders

In 2007, the United Nations officially acknowledged the existence of the collective rights of indigenous peoples. The United Nations Declaration on the Rights of Indigenous Peoples

(UNDRIP) affirms that indigenous peoples have a right to self-determination. The UNDRIP articles make reference to first occupation, corrective justice, and cultural integrity. The articles state that indigenous peoples are not to be dispossessed from their lands, nor are they to be displaced. Land and territory are mentioned in Articles 8, 10, 25, 26, 27, 28, 29, 30, and 32 of the UNDRIP. Articles 8 specifies that indigenous peoples and individuals have the right not to be subjected to forced assimilation and that states shall provide redress for any action that dispossesses them of their lands, territories or resources. Article 10 states that indigenous peoples “shall not be forcibly removed from their lands or territories” and that relocation shall not take place without prior consent. Article 25 states that indigenous peoples have the right to their distinctive spiritual relationship with their traditionally owned or otherwise occupied lands and territories. Article 26 states that indigenous peoples have rights to the lands, territories, and resources which they have traditionally owned, occupied, or otherwise used or acquired; they also have the right to own, use, develop and control their traditional lands, territories, and resources as well as lands which they have otherwise acquired; and that states shall give legal recognition and protection to these lands, territories, and resources. Article 26 further states

79 that such recognition shall be conducted with due respect to the customs, traditions, and land tenure system of the indigenous peoples concerned.

The Articles state that indigenous peoples have a right to control their land, their territories, and their resources. They also have a right to their cultural heritage. Article 27 contends that states shall give due recognition to indigenous peoples’ law, traditions, customs, and land tenure systems, and will recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories, and resources, including those which were traditionally owned or otherwise occupied or used. Article 27 further asserts that indigenous peoples will also have the right to participate in this process. Article 28 makes a corrective justice claim and states that indigenous peoples have the right to redress, restitution, and compensation for the lands, territories, and resources which they have traditionally owned or otherwise occupied or used, and which have been taken without their prior consent; such compensation should take the form of lands, territories, and resources that are equal in quality, size, and legal status, or consist of monetary compensation or other appropriate redress. Article 29 states that indigenous peoples have the right to the conservation and protection of their lands or territories and resources. Article 30 declares that military activities should not take place on indigenous lands or territories. Article 32 states that “indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.” Article 32 further affirms that states shall consult and cooperate with indigenous peoples with regard to resource development.

The UNDRIP also specifies that transboundary indigenous peoples have a right to remain in contact and to participate in cross-boundary issues. Article 36 states that “indigenous peoples,

80 in particular those divided by international borders, have the right to maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural, political, economic and social purposes, with their own members as well as other peoples across borders.” The

UNDRIP does not address the issue of territorial and border control per se, but one can assume that the UNDRIP supports open borders and comanagement schemes that respect cross- boundary indigenous relationships with the territory and the land. It is also in keeping with Lu

(2018)’s position that that the self-determination claims of transboundary indigenous peoples require an international structure that limits the authority of states to unilaterally control their borders (p. 254). Lu argues that the self-determination of transboundary indigenous peoples requires more porous (open) boundaries. Taking the self-determination claims of UNDRIP seriously would mean placing limits on states to control the movement of people, goods and services across their international borders” (p. 262).

Lu (2018) argues that we have “to untie the value of self-determination from statist models of instantiating group self-determination” (Lu, 2018). Lu (2018, p. 253) points out that statist accounts, such as those offered by Stilz (2015), that rely on states as agents of global justice can

“obscure the extent to which the expansion and entrenchment of a state-centric international society has generated a structural legacy of injustice and alienation” (p. 253). Stilz (2015) argues that peoples have a justified interest in redrawing boundaries when they lack political representation and when they are persistently alienated from their political institutions. It is an associative account that holds that decolonization was morally required because subject peoples were unable to affirm the political institutions their rules imposed on them (p. 5). For

Stilz (2015), peoples are not marked out by pre-political characteristics (i.e., shared language or

81 culture) but by association and they have a pro tanto claim to create minimally just institutions that they can affirm. Stilz (2015) also argues that most colonial cases are “warranted failures of subjective legitimacy” and posits that a legitimate state or political structure of governance should not only protect basic rights but should be “subjectively affirmed” by them. The value of self-determination consists in “citizens being coauthors of the institutions that govern their lives” (p. 265).

Lu (2018) follows Stilz by noting that indigenous peoples experience structural injustice and alienation when forced into a sovereign state and interstate system that denies their status as self-determining associative groups. For Lu, however, the task of decolonizing the international order requires that we rethink the international structure of state control over territorial boundaries. Lu (2018) points to the two options most often pursued by political theorists when seeking to accommodate the self-determination claims of indigenous and substate groups within an order of sovereign states—(1) redrawing boundaries, such as in cases of secession, and (2) reforming international governance structure. Lu (2018) argues that both these strategies involve “an underlying premise that ties claims of self-determination to the justification of a state’s authority to use coercion to enforce exclusive territorial rights, such as its rights to control borders.” The problem, according to Lu (2018) is not only that the boundaries are in the wrong place or that they were unjustly drawn. What makes state boundaries unjust from an indigenous perspective is that states have exclusive and coercive control over them. For Lu (2018), redressing the structural injustices associated with colonial boundaries requires “transformations of sovereign rights over cross-border activities and relations” (p. 254). In other words: “the way to decolonize territorial borders … is not to redraw

82 the lines.” For Lu (2018), the solution to the problem of transboundary territorial claims is to place limits on the authority of states “to control unilaterally or restrict coercively transboundary social relations of indigenous and other groups” (p. 270). Taking the needs of local populations into account limits “what any state can do in terms of claiming a territorial boundary or asserting a right to territorial control with implications for resource use” (p. 270).

The considerations are important “in outlining conditions on states’ internal and external authority to control or inhibit the development and fulfillment of social relations that traverse their borders” (p. 270).

3.6 Conclusion

The discourse on indigenous rights is built on two premises: first, that indigenous people have the right to make decisions regarding and maintaining their own societies (i.e., the right to self-determination); and second, that past and ongoing injustices caused by colonization of indigenous peoples’ territories should be rectified (i.e., land and resource rights should be redistributed) (Ahren, 2017, p. 85). This chapter provided an overview of historical entitlement, remedial claims, and nonremedial claims in support of indigenous territorial claims. Historical entitlement arguments include time immemorial, the principle of first occupancy, and the principle of prior occupancy. Historical entitlement arguments are based on the claim that prior possession entails present possession. Indigenous territorial claims based on time immemorial

(“time beyond memory”) posit that territorial title is rooted in the distant past, the time before recorded history. Time immemorial is a version of the first occupancy argument that claims that

83 the group who first possessed a territory continues to be the rightful owner of that territory

(Wilmer, 1993; Perry, 2010). Remedial claims include arguments based on corrective justice and restitution, which hold that the injustices of colonialism can be rectified by restoring territorial rights in the present. Past injustice allows indigenous people to make a case for restitution in the present. This was shown to be the case with respect to treaty rights arguments, in which the purpose is to reinstate indigenous territorial rights, but also their rights as independent, self-determining nations. Nonremedial claims include cultural integrity arguments, which assert that indigenous groups have a right to secede, even in the absence of injustice.

The chapter also analyzed the articles of UNDRIP that reference land and territory and show how the right to self-determination applies to territorial and border controls, as well as access to land, and resource use. The UNDRIP articles make reference to first occupation, corrective justice and cultural integrity while also asserting that indigenous peoples have a right to control their land, their territories and their resources. Article 36 states that “indigenous peoples, in particular those divided by international borders, have the right to maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural and political, economic and social purposes, with their own members as well as other peoples across borders.” I argue that the UNDRIP supports open borders and co-management schemes that respect cross-boundary indigenous relationships with the territory and the land. I support my argument with a discussion of Lu (2018) that the self-determination claims of transboundary groups require an international structure that limits the authority of states to unilaterally control borders (p. 254). For Lu, the self-determination of transboundary peoples requires making international state boundaries more porous. Taking the self-determination

84 claims of UNDRIP seriously would mean placing limits on states to control the movement of peoples, goods and services across international borders (p. 254). The problem with international borders is not simply that they are in the wrong place. The problem is that they are alienating. For Lu (2018), redressing the spatial and structural injustices associated with colonial boundaries require the transformation of the rights of nation-states over cross-border activities and relations (p. 254).

85 CHAPTER FOUR: SPATIAL HIERARCHIES, STRUCTURAL INJUSTICE AND THE 1992

LAND, ISLAND AND MARITIME FRONTIER DISPUTE (NICARAGUA INTERVENING)

4.1 Introduction

This chapter considers the application and interpretation of uti possidetis de jure, the doctrine that decolonizing states are to inherit the boundaries of the previous colonial regime, within the context of the 1992 Land, Island and Maritime Frontier Dispute (Nicaragua

Intervening). The purpose is to examine the legal discourses of the International Court of Justice

(ICJ) and to show how these are implicated in the dispossession of the Chorti Mayan, Lenti, and

Pipil peoples from their ancestral lands (Gilbert, 1999; Castellino, 2004). The analysis is undertaken from the perspective of legal geography and focuses on the spatial hierarchies associated with the ICJ’s ruling that pre-independence indigenous land grants (titulos ejidales) were irrelevant when determining the 1821 uti possidetis border line. The chapter begins by examining the way that indigenous peoples are represented in the memorials of the dispute’s written proceedings. The chapter also evaluates the ICJ’s judgement from the perspective of

“human considerations” (Saliternik, 2017) and the possibility of drawing a line that is centered around indigenous self-determination. The ICJ judgement provides an example of the structural injustices of colonial legalism in its strict adherence to the state-centric principle of uti possidetis de jure. An alternative approach would be one that is in keeping with Article 36 of

United Nations Declaration of the Rights of Indigenous Peoples (2007) and would enable the indigenous right “to maintain and develop contacts, relations and cooperation, including

86

87 activities for spiritual, cultural and political, economic and social purposes, with their own members as well as other peoples across borders.”

4.2 Spatial hierarchies: Uti possidetis de jure and the titulos ejidales

El Salvador and Honduras first brought the Land, Island and Maritime Frontier Disputes

(Nicaragua Intervening) before the ICJ in 1986, asking the International Court of Justice (the

Court) to delimit six sections of the international land boundary and to determine the legal situation of the islands and maritime spaces in the Gulf of Fonseca. The case is typical of Latin

American boundary disputes. First, it includes a dispute over land boundaries that date from colonial times (Dominguez et al., 2003). Second, the parties agreed at the outset that the dispute was to be settled in accordance with uti possidetis de jure. The boundary was to follow the former administrative boundaries of what had been the provinces of El Salvador and

Honduras on the critical date of 15 September, 1821, the last day on which the Central

American countries were possessions of the Spanish Empire. Third, “neither side was able to produce a single legislative document defining its preferred boundary” (Glassner, 1998, p. 249).

The Spanish Crown had left behind multiple, overlapping administrative districts (vice-royalties, captaincies-general, provincias, alcaldias, audiencias, mayores, intedencias) whose jurisdictions were not always consistent and whose borders did not always align with one another. Fourth, the borderlands were relatively remote and, in many cases, had not yet been mapped or surveyed by official Crown cartographers; many of the disputed areas were represented on colonial maps as terra nullius (empty land).

88 The task of the ICJ was to reconstruct the uti possidetis line of 1821. El Salvador and

Honduras stipulated that the uti possidetis line of 1821 was to be determined by referring to the documents provided by the Spanish Crown, along with those of “any other Spanish authority” that could provide “evidence and arguments of legal, historical, human or any other kind.”14 El Salvador and Honduras agreed that this evidence would include the titulos ejidales

(formal title-deeds to the common lands) that were issued by the Spanish Crown to the indigenous communities in the sixteenth and seventeenth centuries (Evans, 1992). At the time of independence, most of the disputed territory had been the subject of grants of various kinds by the Spanish Crown, mostly to Indian communities or to private individuals. The titulos ejidales were similar to colonial land grants. In Spanish, ejidales are similar to the English

“commons,” which means “common land.” In Spanish America, ejidales refers to endowed lands established in the colonial period under the control of and for the service of the municipalities or villages. In his work on indigenous property systems in Central America, Greer

(2018, p. 73) notes, however, that the Spanish Crown did not exactly “grant” the land to the

Indian pueblos. Unlike the English and the French in the Americas, the Spanish Crown recognized the prior existence and legitimacy of aboriginal property. Indigenous title was accepted as primordial through the first half of the history of New Spain (fifteen and sixteenth centuries) and the courts did not require the documentary proof from indigenous peoples that they would have required from Spaniards claiming title.

14 The Land, Island and Maritime Frontier Dispute between El Salvador and Honduras (Nicaragua intervening), 1986, Special Agreement, ICJ Reports, 1991.

89 The titulos ejidales were paternalistic, however. The Spanish Crown understood the titulos ejidales as a form of “protective legislation.” The indigenous titulos ejidales belonged to the (Spanish) municipal councils of the indigenous poblaciones (towns). Once an indigenous settlement had been given written title, the Spanish municipal authorities were to take over administrative and financial control. This provided the crux of the Salvadorian argument as the

Spanish colonial government gave written titulos ejidales to the municipalities and indigenous communities to mark their lands for subsistence planting and harvesting. These documents marked the indigenous boundaries and, for El Salvador, constituted proof that the uti possidetis line divided not only the provinces of El Salvador and Honduras, but was also recognized by the

Crown as having divided the original indigenous inhabitants. El Salvador requested that the ICJ take the indigenous titulos ejidales as proof of the state’s exercise of territorial jurisdiction and made the case that the titulos ejidales proved that it had administrative control over the indigenous communities on the day of the critical date of independence.

This portrays a state-centric position that depends on a view of aboriginal peoples and their lands as instrumentally valuable for state territorial claims. El Salvador presented a map of the sixteenth and seventeenth-century titulos ejidales to the ICJ as proof of the 1821 boundary line. The titulos ejidales were, for El Salvador, “the best possible evidence, the supreme means of proof, in relation to the application of the principle of uti possidetis de jure.”15 The indigenous tribes of the borderlands had been in possession of their territories since time immemorial. The titulos ejidales were evidence that the province of El Salvador later had

15 The Land, Island and Maritime Frontier Dispute between El Salvador and Honduras (Nicaragua intervening), 1986, El Salvador Memorial, ICJ Reports, 1991, p. 49.

90 jurisdiction over the region’s tribes and their lands. The municipal authorities had jurisdiction over the indigenous poblaciones, which were in turn overseen by the governing authorities of the colonial province. It is a state-centric position that is based on a view of the titulos ejidales as being valuable only as evidence for state claims, as opposed to functioning as evidence for indigenous land claims.

4.3 Tecpanguisir Mountain: The colonial past and present

The boundary dispute discourses of the ICJ present a view that places indigenous peoples and their claims deep in the colonial past. El Salvador and Honduras’s memorials—the primary written documents in an ICJ boundary dispute case—make repeated reference to indigenous priority claims, indigenous settlement patterns, and indigenous treaties but without ever referring to the present-day indigenous inhabitants of the borderland regions. El Salvador and Honduras’s discussion of the Tecpanguisir Mountain boundary zone provides an example.

The Tecpanguisir Mountain was the first of six boundaries that the ICJ was asked to delimit. The

Tecpanguisir Mountain has an area of approximately 70 km2 and lies between the El Trifinio

(tripoint) boundary marker that divides Guatemala, Honduras, and El Salvador in the west and the peak of the El Zapotal Mountain in the east. The El Salvador Memorial describes the region’s geomorphology, its irrigation system, its yearly agricultural productivity (moderate), its vegetation (permanent forests) and its mineral deposits (copper and iron).16 In the Honduras

16 The Land, Island and Maritime Frontier Dispute between El Salvador and Honduras (Nicaragua intervening), El Salvador Memorial, ICJ Reports, 1986, 2.7 at 20.

91 Memorial, El Salvador lists the various towns, municipalities and districts of the area, while

Honduras provides the names of the mountains of the region (El Talquezalar, El Tepangüisir, El

Zapotal, El Malcotabl) and the names of the principal sources of water (Polco River, San Miguel

River, Ingenio and Taguilapa rivers).17 In the Honduras Memorial, El Salvador and Honduras mention that the population of the Tecpanguisir region is dispersed in small haciendas and hamlets in the zones where agriculture is possible.18

Neither El Salvador nor Honduras mentions the indigenous character of the towns, or that the present-day inhabitants of these settlements are indigenous or have indigenous origin.

The Honduras and El Salvador memorials discuss indigenous peoples only in the past tense and only when referring to the colonial context of the seventeenth and eighteenth centuries.

Indigenous peoples are erased from the landscape, despite the role that the original indigenous boundaries played in the legal proceedings. El Salvador argued that Tecpanguisir Mountain was a “Salvadoreñan settlement administered from time immemorial by Salvadoreñan authorities”19 and that this made El Salvador the obvious heir of the Salvadoreñan indigenous territories. Tecpanguisir Mountain has been “inhabited and cultivated since time immemorial” by the indigenous peoples of the town San Francisco Citalá in the Spanish Colonia Province of

San Salvador.20 The lands to the west of the River Lempa and Tecpanguisir Mountain were crown lands, which had also “always been cultivated by the Indian population of Citalá.” To the

17 The Land, Island and Maritime Frontier Dispute between El Salvador and Honduras (Nicaragua intervening), Honduras Memorial, ICJ Reports, 1986, p. 319-321. 18 The Land, Island and Maritime Frontier Dispute between El Salvador and Honduras (Nicaragua intervening), Honduras Memorial, ICJ Reports, 1986, p. 321. 19 The Land, Island and Maritime Frontier Dispute between El Salvador and Honduras (Nicaragua intervening), El Salvador Memorial, ICJ Reports, 1991, 3.11. 20 The Land, Island and Maritime Frontier Dispute between El Salvador and Honduras (Nicaragua intervening), El Salvador Memorial, ICJ Reports, 1986, p. 55, 6.5.

92 east were the Ocotepeque tribes (present-day Honduras), who “since ancient times” were seeking to dispossess the Citalá peoples on the Salvadorian side of the border.21

The El Salvador Memorial22 casts the Honduran Ocotepeque tribes in a negative light, however, noting that they were “hostile” in their desire “to snatch away these lands.” The

Salvadorian tribes of Citalá are portrayed as the more peace-loving of the Ocotepeque and

Citalá tribes, preferring to take the legal route and work in consultation with the Spanish authorities. El Salvador produced the titulos ejidales from 1658, 1702, 1742, and 1776 and argued that they showed, first, that “the indigenous inhabitants of Citalá had been in possession of these disputed Commons since the founding of the said township” and, second, that “these lands were within the boundaries and the jurisdiction of the Province of San

Salvador.”23 The 1702 titulos ejidales show the Citalá tribes petitioning the Crown “to ensure that they were not dispossessed either from the said lands or from any part of them.”24 The

1742 documents showed the lands had been given “to the Indians of the township of Citalá” as was confirmed in the town of Santiago de Esquipulas on 23rd February 1742.”25 The 1776 titulos ejidales saw the indigenous inhabitants of Citalá (El Salvador) petitioning the Spanish judicial authorities for a measurement of Tecpanguisir Mountain, with the resulting titulo ejidal giving

21 The Land, Island and Maritime Frontier Dispute between El Salvador and Honduras (Nicaragua intervening), El Salvador Memorial, ICJ Reports, 1986, p. 55, 6.5. 22 The Land, Island and Maritime Frontier Dispute between El Salvador and Honduras (Nicaragua intervening), El Salvador Memorial, ICJ Reports, 1986, p. 55, 6.5. 23 The Land, Island and Maritime Frontier Dispute between El Salvador and Honduras (Nicaragua intervening), El Salvador Memorial, ICJ Reports, 1986, p. 55, 6.4. 24 The Land, Island and Maritime Frontier Dispute between El Salvador and Honduras (Nicaragua intervening), El Salvador Memorial, ICJ Reports, 1986, p. 55, 6.5. 25 The Land, Island and Maritime Frontier Dispute between El Salvador and Honduras (Nicaragua intervening), El Salvador Memorial, ICJ Reports, 1986, p. 55, 6.5.

93 “possession of the land in question to the native population of Citalá and this adjudication was duly carried into effect on 2nd August 1776.”26

The Honduras Memorial of 1992 The Land, Island, and Maritime Frontier Dispute takes the side of the Ocotepeque tribes, who were located on the other side of the Lempa River from the Citalá tribes.27 The Ocotepeque and Citalá tribes had long-standing issues with respect to

Tecpanguisir Mountain. The indigenous community of Ocotepeque, according to the Honduras

Memorial, first appeared in government documents in the sixteenth century, when a Crown official opposed allocating Ocotepeque indigenous lands to a private individual.28 At this time, the Spanish Crown gave the indigenous people of Ocotepeque a confirmation of “juste possession” of the commons. According to the Honduras Memorial, the indigenous community of Citalá (El Salvador) doesn’t appear in the official Spanish documents until the eighteenth century, and only on occasion of the land conflicts with the Ocotepeque. The Honduran representatives agreed the Citalá tribes did possess ejidos somewhere in the vicinity of

Tecpanguisir Mountain, but it was impossible to know exactly how those ejidos were obtained and where those lands were. Honduras insisted that when the lands of Tecpanguisir were first surveyed in 1776, the lands were found to be under the jurisdiction of Gracias a Dios on the

Honduran side, not under the jurisdiction of the province of San Salvador.29

26 The Land, Island and Maritime Dispute between El Salvador and Honduras (Nicaragua intervening), El Salvador Memorial, ICJ Reports, 1986, 4.14. 27 The Land, Island and Maritime Frontier Dispute between El Salvador and Honduras (Nicaragua intervening), Honduras Memorial, ICJ Reports, 1986. 28 The Land, Island and Maritime Frontier Dispute between El Salvador and Honduras (Nicaragua intervening), Honduras Memorial, ICJ Reports, 1986. 29 The Land, Island and Maritime Frontier Dispute between El Salvador and Honduras (Nicaragua intervening), Honduras Memorial, ICJ Reports, 1986, p. 58, 6.13.

94 In El Salvador’s view, the 1776 titulo ejidal was a “precise and decisive document” that

“constituted complete proof” of El Salvador’s jurisdiction.30 It was a matter of historical record that the indigenous township of Citalá was located within the Province of San Salvador, that the formal title deed to the commons of Tecpanguisir Mountain was granted to that township, and that the administrative control fell under the Province of San Salvador.31 The Salvadorian side claimed that the land had been under the possession of the Citalá indigenous tribes since time immemorial and that the titulos ejidales proved that the tribes were located on the Salvadorian side of the border.32 Honduras countered that the titulo ejidal of 1776 was a boundary extension that was granted by the local land courts because the Citalá indigenous community needed more land for subsistence.33 According to Honduras, this rendered the 1776 titulo ejidales irrelevant. The titulos ejidales of 1776 might have modified the local boundaries between the indigenous tribes of Citalá and Ocotepeque but they did not modify the borders between the provinces of El Salvador and Honduras. International boundaries at that time could only be modified by the Crown, not by provincial authorities. According to Honduras, even if the Spanish Crown had wanted to change the boundaries, a land title was not the appropriate route.34 In this case a Real Cedúla (Royal Decree) or something similar was needed.

30 The Land, Island and Maritime Frontier Dispute between El Salvador and Honduras (Nicaragua intervening), Honduras Memorial, ICJ Reports, 1986, p. 58, 6.13. 31 The Land, Island and Frontier Dispute between El Salvador and Honduras (Nicaragua intervening), Honduras Memorial, ICJ Reports, 1986, p. 58, 6.13. 32 The Land, Island and Frontier Dispute between El Salvador and Honduras (Nicaragua intervening), Honduras Memorial, ICJ Reports, 1986, p. 58, 6.13. 33 The Land, Island and Frontier Dispute between El Salvador and Honduras (Nicaragua intervening), Honduras Memorial, ICJ Reports, 1986, p. 58, 6.13. 34 The Land, Island and Maritime Frontier Dispute between El Salvador and Honduras (Nicaragua intervening), Honduras Memorial, ICJ Reports, 1986, p. 58, 6.13.

95 4.4 Spatial hierarchy and structural injustice: The ICJ judgment

Honduran state lawyers argued that the ICJ was bound by intertemporal law to respect the authority that the seventeenth century Spanish Crown had over the local land courts. They also argued that the location of the indigenous boundaries and the indigenous communities were irrelevant when deciding upon the uti possidetis de jure line of 1821.35 The ICJ agreed with

Honduras. The ICJ judgment (ICJ Judgements, 1992) judgment shows evidence of the spatial hierarchies of colonial legalism as the ICJ notes that the disputed territories had never been occupied (by Europeans) and that these regions remain either unexplored or inhabited by “non- civilized natives.”36 The doctrine of uti possidetis allows states to establish that the lands are not terra nullius (empty land) and are not open to outside colonization. The problem for the ICJ was how to make sense of all of the various documents and the various administrative boundaries. The administrative boundaries were of different kinds and of different degrees and included political districts (vice-royalties, captaincies-general, provincias, alcaldias, audiencias, mayores, intedencias) as well as ecclesiastic districts (arzobispados, provincias de las religiones, obispados sufraganeos, parroquias, curatos) (Weissner, 2008).

The Court declared that uti possidetis de jure was “essentially a retrospective principle, investing as international boundaries administrative limits intended originally for quite other purposes.”37 That is, Indigenous peoples and their lands are the legal possessions of whichever

Spanish Republic their lands belonged to “from the first hour.” In the Tecpanguisir Mountain

35 The Land, Island and Maritime Frontier Dispute between El Salvador and Honduras (Nicaragua intervening), Honduras Memorial, ICJ Reports, 1986. 36 The Land, Island and Maritime Frontier Dispute between El Salvador and Honduras (Nicaragua intervening), ICJ Judgment, ICJ Reports, 1992, 43, p. 388. 37 The Land, Island and Maritime Frontier Dispute between El Salvador and Honduras (Nicaragua intervening), ICJ Judgment, ICJ Reports, 1992, 43, p. 388.

96 boundary zone, the ICJ rejected the 1776 indigenous titulos ejidales in favour of postcolonial documents and the evidence of postcolonial effective occupation on the part of the state.38

Instead of accepting documentary material from before the critical date, the ICJ instead chose to look at the negotiations that were conducted in 1881, 1884, 1914, and 1935. Instead of acknowledging that discrepancies over the administrative control of the Tecpanguisir Mountain originated in an indigenous boundary dispute, the ICJ ruled that the conflict was better understood as originating in a discrepancy in the 1935 definition of the latitude and longitude of the tripoint marking the border of Guatemala, El Salvador, and Honduras.39

According to the ICJ, the discrepancy noted above was the result of the choice of different datum.40 The ICJ acknowledged that there was a long-standing dispute between the

Citalá (El Salvadoran) and the Ocotepeque (Honduran) indigenous communities but it did not see the dispute as being relevant with respect to the contemporary border line. El Salvador argued that the titulos ejidales proved that El Salvador had always exercised jurisdiction and sovereignty over Tecpanguisir Mountain. The indigenous title of the Citalá tribes proved

“without any doubt that the jurisdiction of Citalá, Department of Chalatenango, Republic of El

Salvador over the Mountain of Tecpanguisir was consigned without prejudice of the rights that

El Salvador has over the crown lands situated between the commons of Citalá in El Salvador and the commons of Ocotepeque in Honduras.”41 The Salvadorian argument was that El Salvador

38 The Land, Island and Maritime Frontier Dispute between El Salvador and Honduras (Nicaragua intervening), ICJ Judgment, ICJ Reports, 1992, 68, p. 402. 39 The Land, Island and Maritime Frontier Dispute between El Salvador and Honduras (Nicaragua intervening), ICJ Judgment, ICJ Reports, 1992, 68, p. 402. 40 The Land, Island and Maritime Frontier Dispute between El Salvador and Honduras (Nicaragua intervening), ICJ Judgment, ICJ Reports, 1992, 68, p. 402. 41 The Land, Island and Maritime Frontier Dispute between El Salvador and Honduras (Nicaragua intervening), Honduras Memorial, ICJ Reports, 1986, p. 58, 6.13.

97 was the rightful heir to the Citalá indigenous land grant, and Honduras was the rightful heir of the Ocotepeque land grant. Honduras, on the other hand, argued that the boundary line between the indigenous communities was not identical to the boundaries of the former provinces.42 Honduras argued that it wasn’t until 24 August 1934 that the Tripoint between El

Salvador, Honduras, and Guatemala was fixed, thanks to the help of the United States and an aerial photography process. A Joint Commission in 1934 made the point that the Tecpanguisir

Mountain lands surveyed in 1776 were part of the jurisdiction of Gracias a Dios, Republic of

Honduras. This was then evidenced by an official Honduran map.43

Reisman (1999, p. 356-358) calls the ICJ’s decision “astonishing.” El Salvador had invited the ICJ to examine uti possidetis claims based on the earlier rights of the Indian poblaciones. El

Salvador had “selected indigenous law as the law that might have governed the acquisition or retention of title as one of the temporal links through which international title could be traced”

(p. 358). The ICJ’s rejection meant that “a juridical value for indigenous rights was denied, even in a case where the parties had authorized the Court to take account of them” (p. 356).

Reisman (1999) suggests that the position is typical of the ICJ, as it addresses “only the issues raised by the formal parties before them, which, under the rules of the game established by states, can only be states” (p. 356). Indigenous peoples at the ICJ are consigned to a kind of

“international legal shadow land,” rendered “essentially invisible” or, when noticed, “treated, legally, along with the flora and fauna of the land concerned” (p. 356). That is, they are passed along with the land.

42 The Land, Island and Maritime Frontier Dispute between El Salvador and Honduras (Nicaragua intervening), Honduras Memorial, ICJ Reports, 1986, p. 333. 43 The Land, Island and Maritime Frontier Dispute between El Salvador and Honduras (Nicaragua intervening), Honduras Memorial, ICJ Reports, 1986, p. 333.

98 El Salvador and Honduras acknowledged that the territories in dispute were the ancestral lands of the Mayan Chorti, Pipil, and Lenca peoples. However, the ICJ’s judgment did not acknowledge indigenous peoples and did not “accord weight to indigenous peoples, even though the peoples were living in the territories on which the states’ dispute turned”

(Koivurova, 2010, p. 174). The Court ruled that anything pertaining to the precolonial indigenous legal order was irrelevant. The ICJ based this decision on postcolonial documents and postcolonial effective occupation and rejected historical claims that predated the parties’ independence (Sumner, 2004). The ICJ also rejected claims based on historical priority. For the

ICJ, the location of the Spanish provincial boundaries was dispositive in the boundary determination, and the titulos ejidales did not carry any special probative weight. The ICJ also rejected the Salvadorian idea that state territorial claims could be traced through the indigenous ejidos, instead ruling with Honduras that the colonial Spanish boundaries were transformed by the operation of uti possidetis de jure, not the boundaries of the ancient Indian poblaciones.

The Salvadorian government petitioned the Court to recognize the probative value of indigenous land grants and to acknowledge that the original indigenous boundary lines carried legal weight.44 The ICJ was constrained, however, because “as the international community is built on states, not peoples, so, too is international law, the body of law that the ICJ is supposed to apply” (Koivurova, p. 157). Under international law, peoples (nations) have rights and duties

“only to the extent that they are states” (Koivurova, 2010p. 158). The ICJ views the state system

44The Land, Island and Maritime Frontier Dispute between El Salvador and Honduras (Nicaragua intervening), El Salvador Memorial, ICJ Reports, 1986, 4.14.

99 and its borders as sacrosanct, immoveable and fixed for all time. The boundary adjudication process at the ICJ assumes a statist, property-based conception of territorial rights. The point of uti possidetis de jure in Latin America was to ensure that the colonial spatial framework was transferred from the formerly dependent provinces of the Spanish Crown to the newly formed states. To summarize, both El Salvador and Honduras state that the lands under dispute are the ancestral territories of “the Indians” of Citalá and Ocotepeque, but the indigenous tribes are spoken of only in the past tense and their land titles are understood only as providing evidence for the state claims.

4.5 Drawing a better line: Transboundary peoples

The traditional legal discourses of the ICJ are based on an absolutist, state-centric view of territorial space that understands the nation-state as an idealized fixed entity. In 1986, El

Salvador and Honduras agreed to have the ICJ reconstruct the uti possidetis de jure line that was determined in 1821. In keeping with international practice, the disputing parties accepted that the boundary line was to follow the boundary designated by the colonial administration on

September 15, 1821, as far as it could be reconstructed through the documents of the Spanish

Crown. El Salvador and Honduras based their territorial claims on historical entitlement, each making the case that it was the heir of the administrative boundaries of the Spanish Empire and the boundaries that divided the original indigenous inhabitants. The ICJ refused, however, to acknowledge the boundaries of the indigenous populations, ruling instead that it was the

100 administrative units of the previous colonial power that were to be transformed into international border lines.

The task of international law is to anchor the colonial spatial forms in place. The ICJ is not required to take the interests of indigenous peoples into account when delimiting the uti possidetis line between two states. By appealing to uti possidetis de jure, the ICJ judgment served to incorporate the indigenous borderland territories into the state system. It is an example of the structural injustices of colonial legalism that this took place without indigenous consent. At the time of 1992 judgment in Land, Island and Maritime Frontier Case, the official narrative on the part of the governments of El Salvador and Honduras was that there were no longer any indigenous peoples in the border regions. According to Tilley (2005), the governments claimed that indigenous peoples did not exist. They had long since been assimilated into a general mestizo (mixed-race) identity and culture. Over the years, they lost not only their land but their traditional dress and language (Tilley, 2005). With the exception of a few isolated areas in the southern regions, indigenous culture had largely been abandoned.

This poses a problem for boundary theorists. According to Tilley (2002; 2005), many who identify as indígena in El Salvador do not match the criteria for indigeneity held by either local society or international society. El Salvador’s indigenous people tend to speak Spanish as their only language and they no longer dress in traditional costume. At the margins of many

Central American nation-states (El Salvador, Honduras, and Nicaragua), there are a plenty of groups that are locally, regionally, and sometimes even nationally recognized as indigenous, although they do not display the characteristics that the ethno-discourse of the region posits as prerequisites for territorial claims (Ronsbo, 2004, p. 212). The difference between indigenous

101 and nonindigenous populations is (still) defined by the observable traditional culture that indigenous groups possess. While there has been some effort to ensure that indigeneity is based on self-identification, international institutions and national governments tend to hold that indigenous peoples are “outside national society, control a separate space, use different productive techniques based on different knowledge and worldviews, work communally, and dress and speak in different ways from the national majority” (Ronsbo, 2004, p. 212).

Theorists agree that indigeneity should not be conceptualized as “a static identity based on cultural homogeneity and essence.” On the other hand, indigenous identities are still necessary if indigenous groups are to make serious claims about being an organized people with a claim to territorial rights. In recent years, both El Salvador and Honduras have amended their constitutions and have recognized the country’s Indigenous peoples as well as the state’s obligations to them. Article 63 of the Salvadorian Constitution of 1983 with Amendments through 2014 reads: “El Salvador recognizes Indigenous Peoples and will adopt policies for the purposes of maintaining and developing their ethnic and cultural identities, cosmovision, values and spirituality.” The starting point would be to recognize that indigenous peoples are self- determining and self-governing and in need of securing land rights and rights for indigenous groups so that the ills of colonization are remedied for present and future generations.

4.6 Conclusion

Lu (2019, p. 253) notes that the self-determination claims of indigenous peoples “force us to rethink the traditional prerogatives of a state’s jurisdiction.” The ICJ’s judgement could

102 have recognized the indigenous origins of the administrative colonial boundaries between El

Salvador and Honduras by giving legal weight to indigenous self-determination in the border regions. El Salvador had argued that the ICJ ought to take the pre-colonial indigenous boundaries into account when deciding upon the uti possidetis line of 1821 and that the Court ought to delimit the borders based on the original indigenous settlements, as opposed to the borders of the Spanish provinces. The titulos ejidales showed that the indigenous boundaries were not only identical to the Spanish boundaries but had in fact preceded them. The ICJ responded by ruling that it was the administrative boundaries between the Spanish colonial administrative units, not the boundaries between indigenous settlements, that were to be transformed by the uti possidetis de jure line. Any juridical value for indigenous rights was therefore denied, even though the parties had authorized the Court to take account of them. As a result, the indigenous lands were further annexed, appropriated and incorporated into the state system (Weissner, 2008).

The ICJ therefore legally endorsed the political decision that was made by the Latin

American elite in the 18th century to reject indigenous ethnic territorial division in favour of the colonial administrative one. Legal geography shows that the underlying spatial and temporal assumptions of colonial legalism continue to inform modern international law, leading to the perpetuation of spatial hierarchies and injustice. The arguments of the memorials depend on a view of indigenous peoples, their histories and their lands as being instrumentally valuable for state claims with respect to the determination of state boundaries. The Salvadorian government petitioned the Court to recognize the probative value of indigenous land grants and to acknowledge indigenous boundary lines, while at the same time holding on to an official

103 narrative that indigenous peoples had disappeared, having been assimilated into a general mestizo identity and culture (Tilley, 2005). In recent years, however, there has been a shift in understanding as El Salvador and Honduras have signed on to UDRIP and have legally recognized the self-determination rights of indigenous peoples. This recognition is still tied to statist principles, however. An alternative to the statist paradigm might instead be to draw the uti possidetis line to determine the jurisdictional limits of the competing states, but to conceptualize the international boundary as an open border to be managed by transboundary indigenous peoples and the states involved in the dispute. The border management schemes would be undertaken in such a way that it facilitates the self-determination of borderland populations (Lu, 2019, p. 254).

104 CHAPTER FIVE: ARTIFICAL BOUNDARIES, THE TOUBOU TRIBES AND THE AOUZOU

STRIP

5.1 Introduction

Libya and Chad presented their legal arguments to the International Court of Justice

(ICJ) over claims to the Aouzou Strip in the Sahara Desert in the 1994 Territorial Dispute (Libya

Arab Jamahiriya/Chad). The Aouzou Strip was (and is) occupied by the indigenous Toubou tribes. Libya’s arguments to the ICJ were in favour of recognizing precolonial indigenous title.

Libya argued that they were the rightful heir to the Aouzou as it had been passed down to the

Libyan state via a chain of transference that went from the original Toubou tribes to the

Senoussi Order, and then to the Ottoman Empire and Italy. The ICJ dismissed Libya’s arguments and ruled in favour of Chad’s arguments for doctrine of uti possidetis de jure. Uti possidetis de jure states that decolonizing or seceding states should inherit the boundaries of their colonial— not indigenous—predecessors. Using legal geography and critical border studies, this chapter argues that ICJ judgment supports a conception of international legal justice that perpetuates and legitimates the structural injustices associated with colonial legalism (Kedar et al., 2018, p.

18). The chapter begins with an overview of the dispute with respect to the distinction between artificial and natural borders, the “scramble for Africa” of the late 1800s, and the concept of the

“colonial heritage.” The chapter also examines the ways that the Toubou tribes and their lands were represented in the memorials and counter-memorials of the ICJ boundary dispute in order to show how Libya’s historical entitlement arguments attempted to subvert the spatiotemporal

105 legacies of the uti possidetis de jure principle (Burges, 2012, p. 132-133). After examining the

ICJ’s support of Chad’s position on colonial treaties, the chapter examines Judge Sette-Camara’s dissenting opinion. The chapter concludes with a proposal for resolving the case under the principle of self-determination and argues that the structural justices associated with colonial legalism can be partially rectified by having indigenous peoples directly involved in the boundary dispute adjudication process.

5.2 Artificial boundaries, the “scramble for Africa,” and “the colonial heritage”

In August 1990, Libya and Chad petitioned the ICJ (the Court) to decide a boundary dispute involving the Aouzou Strip in the Sahara Desert. The oral proceedings were held in June and July of 1993 in The Hague, and the Court’s judgment was delivered in February 1994. The

Aouzou Strip is an area of about 114,000 km2 that divides Libya and Chad and contains some of

“the most barren land on the face of the earth” (Ricciardi, 1992, p. 305). Libya’s claim to the

Aouzou Strip was based on its historical relationship with the nomadic Toubou tribes of the

Sahara Desert. Libya argued that it was the heir to the territorial title that had once been vested in the Toubou tribes of the Aouzou Strip. The title had since been transferred from the Toubou tribes to the Senoussi (religious) Order to the Ottoman Empire. With the fall of the Ottoman

Empire, territorial title passed to Italy and, with the decolonization of the African continent, it then passed to Libya. Libya grounded its claim to territorial title by reminding the Court that the

Islamic world was not concerned with boundaries or territorial sovereignty in the European sense; it was concerned with the territorial effects of religious authority, which in Islamic

106 societies is the product of personal allegiances based on religious affiliations. The basis

107 of the Islamic state was religious—not political, territorial, or ethnic—and the primary purpose of the Libyan government was to defend and protect the faith, not the state (Burges, 2009, p.

134).

Chad’s position was that the uti possidetis de jure boundary line had been set in the

1955 Treaty of Friendship and Good Neighbourliness between Libya and France,45 which was concluded while the latter was still the colonial power in French Equatorial Africa. Chad requested that the Court delimit the boundary according to the treaty. In a 16-1 vote, the Court ruled in Chad’s favour based on the uti possidetis de jure line of 1955 and in favour of Chad’s claim that it derived its possession of the Aouzou Strip from its colonial predecessor, France.

The Court noted that Article 31 of the 1969 Vienna Convention states that “a treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose.”46 The ICJ agreed with Chad that the uti possidetis line had been set out in the 1955 Treaty by France and Libya and that the line had been recognized by the mutual agreement of the two states.

The ICJ ruled in favour of the artificial boundaries of “the colonial heritage.” The colonial heritage refers to the spatial configuration of African states. It is often described as artificial in that many African boundaries have a geometrical alignment that precisely follows lines of latitude and longitude. According to Anyangwe (2003, p. 29), the artificiality also stems from the fact “that there is hardly an African state whose international boundaries do not separate ethnic communities that were, in pre-colonial days, single polities.” Artificial boundaries are

45 Territorial Dispute (Libya v. Chad), 1994 I.C.J. 7 (Feb. 3) 46 Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, ICJ Reports, 1992, 31.

108 mathematically precise territorial lines that are drawn along meridians and parallels, while so- called natural boundaries follow mountain chains, shorelines, or river valleys and produce a topographical alignment (Popescu, 2012). Both artificial and natural boundaries were superimposed on the African map and—along with capitalism—are the legacy of the European

“Scramble for Africa” in the 1880s and 1890s that saw European powers (including Britain,

France, Germany, and Belgium) turn Africa into colonies.

The formal partitioning of Africa occurred at the Berlin West Africa conference between

1884 and 1885 and provided the European nations with the legitimacy to govern Africa politically, militarily, and economically (Frynas and Paulo, 2007). During this period, the

European colonial powers partitioned Africa into spheres of influence, protectorates, colonies, and free-trade areas. The borders were designed “in European capitals at a time when

Europeans had barely settled in Africa” (Popescu, 2012) and had little knowledge of the local conditions. Popescu (2012, p. 38-39) explains: “These were superimposed borders, dividing territories where no European had ever set foot. It was common that these borders were first established on paper in some European capital, and parties were later sent to find the actual location of the border on the ground.” Popescu (2012) also notes that “linear nation-state borders are a peculiar European creation that emerged out of Europe’s social, economic, and political historical circumstances to address European issues and to serve European worldviews.” The linear political-territorial borders of Africa “did not emerge from the local societies’ imaginations of how to divide political space” (p. 39). African societies were forced to adapt to these borders “in the circumstances of their integration into a world economic and political system dominated by a few European powers” (p. 40).

109 The artificial boundaries led to “ethnic struggles, patronage policies, violence, and conflict,” with ethnic partitioning leading to irredentism and the creation of ideologies of secession and nationalism (Michalopoulos and Papaioannou, 2011, p.1). The borders not only split tribal homelands across countries, but also produced some of the largest and most heterogeneous countries in the world (such as in the Democratic Republic of Congo and in

Sudan). The colonial powers also created buffer zones, protectorates, and neutral zones. These latter borders were intentionally conceived as zonal frontiers. They often appeared as distinct border lines on the African map, but they were rarely demarcated. In practice, the border was permeable and was meaningless for the local populations who continued to cross them freely.

These particular borders lines were not meant to delineate European state territorial sovereignty, but to delineate spheres of influence of the European powers. They were rarely demarcated but were instead “effective ordering devices to help European powers to organize a worldwide political-economic system that they controlled” (Popescu, 2012, p. 39).

There appears to be some confusion about the meanings of “artificial” boundaries and

“linear” boundaries. Artificial boundaries are often linear, but not necessarily so; linear boundaries are only sometimes artificial. Critical border research into African boundaries challenges the idea that linear borders were foreign to the precolonial African continent.

Odutan (2017) refers to this position as “the Eurocentric view of civilizational competence in statehood and territorial delineation” and argues that recent satellite imagery collected from outer space shows the existence of linear relic boundaries throughout the African continent.

Odutan (2017) argues that relic boundaries offer proof that most precolonial African societies, at least since the medieval period, possessed sovereignty in a sense that is familiar to

110 international law. With the advent of satellite imagery and remote sensing, the view of the earth’s surface and subsurface can be photographed, magnified, and orthorectified. The significance for the boundary adjudication process is immense, as geographers, surveyors, lawyers, ethnographers, and cartographers can cross-check the accuracy of land and maritime boundaries with satellite positioning via the World Geodetic System 1984 (WGS84). New boundary delimitation agreements can be agreed to using positions derived from satellite navigation systems and GPS that are based on the WGS 1984 geodetic datum. According to

Oduntan (2017, p. 82), satellite imagery and remote sensing applications show “astonishing discoveries of long-lost features which served as evidence of pre-existing boundaries and landmarks that show the locations as well as the existence of ancient cities and political states”

(p. 81). These are relic, or antecedent, boundaries that “have been abandoned for political purposes but are still evident in the cultural landscape” (p. 82). Such boundaries manifest themselves in space by border stones, mounds, ancient walls, border roads, clearings, custom houses, and watch-towers.

Thus, the idea that linear borders were foreign to African soil is problematic. The evidence refutes the Eurocentric account of Africa as being stateless and undemarcated.

Westerners often do not recognize Africa’s heterogeneity and are rarely aware of the enormous variety of precolonial African political systems. Oduntan (2017) calls existing African states “conceptually faulty” insofar as they are “the crude and thoughtless handiworks of

European colonial powers.” Nearly 50 precolonial states are documented in the literature, including monarchist, republican, unitary, federal, and confederal systems that predate the

“scramble for Africa.” The colonial powers tended to downplay recognition of pre-existing

111 indigenous sovereign arrangements, although recent scholarship shows that there was a high degree of recognition between the representatives of the colonial powers and the various

African political entities they dealt with. In short: “the view that Africa had no contemplation of linear boundaries grossly underestimates African indigenous knowledge, technological prowess and documented contact with the larger world” (Oduntan, 2017, p. 89).

5.3 The Libya Memorial and the Toubou tribes

Burges (2012, p. 116) refers to the 1994 Territorial Dispute between Libya and Chad

(hereafter, Territorial Dispute, Libya/Chad, 1994) as an example of “the postcolonial paradox” that confronts Third World states “in their resort to international law,” and concludes that Libya attempted to subvert colonial spatial legacies associated with uti possidetis de jure. As international law is “a discursive practice that both constrains and enables its central actors, states” (p. 1), non-European states “must use a discourse that has both constrained and enabled them.” The international law applied in the Territorial Dispute, Libya/Chad, 1994 was the product of European experiences of statehood, with ideas of effective occupation, international legal personality, and the validity of treaties framed through the European spatialities of dominance. In the Burges (2012) analysis of the Territorial Dispute (Libya/Chad,

1994), Libya’s claim to the Aouzou Strip was an attempt at subverting the colonial heritage by showing that historical (entitlement) arguments lie at the heart of legal constructions of state personality and territory, thereby challenging “prevailing understandings about international law by offering alternative approaches to international legal personality under colonialism” (p.

112 141). Libya questioned the ICJ’s blind acceptance of uti possidetis de jure and showed how uti possidetis “tend[s] to obscure highly political arguments behind the veil of doctrine” as well as aid “in the perpetuation of a restricted, international legal lexicon” (p. 142). By accepting colonial borders, the ICJ and postcolonial states “can avoid complex considerations of history and geography by focusing exclusively on the contours of colonial administration” (p. 142).

From this perspective, uti possidetis can be interpreted as a policy choice whose use is justified based on the need for stability and certainty in the face of feared anarchy and chaos.

The above issues are exemplified in the Libya Memorial in which the Libyan representatives argued that indigenous occupation of the Aouzou Strip had continued legal relevance for its title. A memorial in an international boundary dispute case is a detailed presentation of the facts and evidence that support a party’s claim to the territory. The Libyan memorial opens with a description of the “geographical facts” of the Aouzou Strip, Libya describes the area’s physical geography, its peoples, and its economy. The Aouzou Strip is located in the Sahara Desert and is composed of “vast areas of arid terrain and sand seas, sparsely inhabited by scattered nomadic tribes.”47 Libya compares the Sahara Desert to the world’s oceans and considers the Aouzou Strip “one of the most hostile environments on earth.”48 For centuries, the Aouzou Strip provided a north/south communications link between the Mediterranean Sea and Europe but— like the ocean— has always been more of “a place to cross rather than to inhabit.”49 The few settlements in the region can be “likened to islands in a sea… the Sahara is aptly described as a great sand sea.”50 The terrain is made up of caravan

47 Territorial Dispute (Libyan Arab Jamahiriya/Chad), Libya Memorial, ICJ Reports, 1992, 68, p. 402. 48 Territorial Dispute (Libyan Arab Jamahiriya/Chad), Libya Memorial, ICJ Reports, 1992, 68, p. 402. 49 Territorial Dispute (Libyan Arab Jamahiriya/Chad), Libya Memorial, ICJ Reports, 1992, 68, p. 402. 50 Territorial Dispute (Libyan Arab Jamahiriya/Chad), Libya Memorial, ICJ Reports, 1992, 68, p. 402.

113 routes that run north/south and through the ancient territories of the nomadic Toubou tribes:

“people the likes of which the European travellers who came to visit during the 19th Century had never before encountered.”51

In the chapter of the Libyan memorial on indigenous peoples, the first point Libya makes is that the tribes of the Aouzou Strip are Muslim. The second point is that the indigenous

Toubou tribes and tribal confederations are Libyan nationals by virtue of their religious, cultural, and economic ties with the Senoussi Order and the Ottoman Empire.52 The third point that Libya makes is that the tribes have been inhabiting the Aouzou since time immemorial: the tribes have “an ancient history of settlement in the region, even predating the Arabs that came south over the past thousands of years” and that the Toubou are among “the remnants of the original Saharan populations.”53 The Toubou tribes—along with the Alwlad Sulaiman and the

Tuareg Confederation—were organized by the Senoussi religious order to fight the advance of

French colonizers in the territories after 1902. The Senoussi Order was founded on a system of zawiyas, that is, lodges that were built at tribal centres throughout the desert. The zawiyas served as monasteries, schools, hostels, and administrative and meeting centres for the nomadic tribes. According to the Libya Memorial, the zawiyas were fortified and turned into

“great blockhouses for the defence of the faith and the organization of resistance.”54 The zawiyas were outposts for the arms trade, and the Sensoussi Order provided the tribes with the weapons needed to resist French military advances. Libya stresses that the mission of arming

51 Territorial Dispute (Libyan Arab Jamahiriya/Chad), Libya Memorial, ICJ Reports, 1992, 68, p. 402. It was said of the Toubous that “a man’s reputation was formed not by how many friends he had but by how many enemies.” 52 Territorial Dispute (Libyan Arab Jamahiriya/Chad), Libya Memorial, ICJ Reports, 1992, 68, p. 402. 53 Territorial Dispute (Libyan Arab Jamahiriya/Chad), Libya Memorial, ICJ Reports, 1992, p. 47. 54 Territorial Dispute (Libyan Arab Jamahiriya/Chad), Libya Memorial, ICJ Reports, 1992, p. 47.

114 the indigenous tribes was simply an adjunct to the Senoussi’s “primary mission of spiritual renewal,” further characterizing the Senoussi Order as “an essentially benign, civilizing mission” that was sent out “among predatory and warlike peoples for the most part existing on the very margins of survival in an extremely harsh environment.”55

There was a special affinity between the Senoussi and the nomadic tribes. The Senoussi were particularly influential in “far-away areas among unruly nomadic tribes” and among

“partly settled peoples whose observances of the tenets of Islam needed revising.”56 The Libyan

Memorial is also careful to note that the picture of the Senoussi as conveyed to Europe through

French military sources is “distorted”—the Senoussi Order was no “armies of fanatics” but that practically the entire nomad population of the Sahara was Senoussi.57 Libya made the same points in the oral proceedings of the Territorial Dispute, Libya/Chad, 1994. Libya stressed that the Libya-Chad borderlands were not terra nullius (empty land). Rather, the Toubous were organized in “sophisticated societies that enjoyed government, laws, social systems and recognition of their territorial limits.”58 The Toubou “were of ancient origin in these regions” and there is “little doubt” that these tribes and tribal confederations were a “people having a social and political organization.”59 The Senoussi, in conjunction with the local tribes, had effective control of the desert, with the title of the indigenous people coexisting with a compatible title that resided in the Ottoman Empire.

55 Territorial Dispute (Libyan Arab Jamahiriya/Chad), Libya Memorial, ICJ Reports, 1992, 3.59, p. 50. 56 Territorial Dispute (Libyan Arab Jamahiriya/Chad), Libya Memorial, ICJ Reports, 1992, p. 47. 57 Territorial Dispute (Libyan Arab Jamahiriya/Chad), Libya Memorial, ICJ Reports, 1992, p. 455, 6.24. 58 Territorial Dispute (Libyan Arab Jamahiriya/Chad), Libya Memorial, ICJ Reports, 1992, p. 48. 59 Territorial Dispute (Libyan Arab Jamahiriya/Chad), Libya Memorial, ICJ Reports, 1992, p. 454, 6.25.

115 Accordingly, in Libya’s view, “[w]hat the facts show is that the indigenous peoples possessed an existing legal title based on their long-established presence and effective administration and settlement in their disputed areas.”60 Prior to the French invasion of 1900, the Toubou tribes had an undisputed title to their lands, along with “a social structure, a legal system, procedures for dispute settlement, a religion, schools, commercial links.”61 The

Senoussi tribes of the borderlands then transferred title to the Ottoman Empire, then to Italy, and finally to Libya upon decolonization. In Libya’s view, the Senoussi and the Toubou tribes are therefore “unquestionably Libyan.”62 Libya noted “that the peoples inhabiting the region within its claim line are Libyan peoples who had title to this territory before the arrival of the

Ottomans, or the Italians, or the French.”63 The Toubou tribes were instrumental in opposing the French invasion from the south and the Italian invasion from the north. In the memorial,

Libya states that the Toubou, along with the Awlad Sulaiman, the Qadhadfa tribe, Orfella tribe, have “for centuries lived and travelled and traded with the oases to the north of Cyrenaica and

Fezzan, which are part of Libya.”64 These people are, in Libya’s view, Libyan people living on

Libyan land.

Shit fuck

60 Territorial Dispute (Libyan Arab Jamahiriya/Chad), Libya Memorial, ICJ Reports, 1992, p. 460, 6.39. 61 Territorial Dispute (Libyan Arab Jamahiriya/Chad), Libya Memorial, ICJ Reports, 1992, p. 460, 6.39. 62 Territorial Dispute (Libyan Arab Jamahiriya/Chad), Oral Proceedings, ICJ Reports, 1992, p.1. 63 Territorial Dispute (Libyan Arab Jamahiriya/Chad), Libya Memorial, ICJ Reports, 1992, p. 47. 64 Territorial Dispute (Libyan Arab Jamahiriya/Chad), Libya Memorial, ICJ Reports, 1992, p. 47.

116 5.4 The ICJ, Chad, and the doctrine of uti possidetis de jure

For all intents and purposes, Chad ignored the Toubou and other tribes of the Aouzou

Strip and instead based its claim on the Treaty of Friendship and Good Neighbourliness concluded between France and Libya in 1955, arguing that the lines delimiting the zones of influence in earlier treaties had by then acquired the character of international boundaries as a result of French colonial occupation. One of the few references to the indigenous populations in the Chad Memorial was in the context of a discussion of France’s 1921 attempt to “regroup” the nomadic tribes. The Chad Memorial notes how French troops had been sent to fight against the “native” (indigenous) rebels who had thus far refused to submit to French authority.65 A

French military post established in the Aouzou Strip was occupied from December 12, 1937 to

June 1, 1951. This military post was offered in the Territorial Dispute, Libya/Chad, 1994 by Chad as proof of France’s effective occupation. The duties of the French military detachment included collecting tribute paid by the village chiefs, the regulation of the indigenous population, “the imprisonment of natives for common law offences against other natives, or for violations of military regulations” and finally, the detachment was responsible for the convocation of assemblies of village chiefs.66 Rather than view the indigenous resistance in the

Aouzou Strip as evidence of indigenous autonomy, Chad instead focused on the suppression of indigenous autonomy by the colonial powers.67

Chad’s position is illustrative of traditional boundary discourses. When faced with the postcolonial paradox, Chad used arguments that were typical of the coloniser to rebut Libyan

65Territorial Dispute (Libyan Arab Jamahiriya/Chad), Chad Memorial, ICJ Reports, 1992, p. 98. 66Territorial Dispute (Libyan Arab Jamahiriya/Chad), Chad Memorial, ICJ Reports, 1992, p. 98. 67Territorial Dispute (Libyan Arab Jamahiriya/Chad), Chad Memorial, ICJ Reports, 1992, p. 98.

117 links with the land. Chad instead offered arguments based on European notions of effective control. In Territorial Dispute, Libya/Chad, 1994, the ICJ ruled in favour of Chad. Burges (2012, p. 132) suggests that Chad’s pleadings in support of uti possidetis de jure are understandable in that Chad was “constituted with little thought for indigenous patterns of authority and rule,” meaning that it was well-disposed to “accept the realities of colonially-determined borders instead of instability and uncertainty.” Chad’s argument was in the Territorial Dispute,

Libya/Chad, 1994 was based on the ICJ’s declaration in the Frontier Dispute Case between

Burkina Faso and Mali that the principle of uti possidetis was one of universal application.68

That principle had recently been adopted by the newly decolonizing African states and was recognized in the Organization of African Unity (OAU) Charter, to which both Libya and Chad were parties. The states had pledged that they would respect the frontiers existing on the critical date of national independence (Naldi, 1992, p. 72-73).

The ICJ supported Chad’s position and the uti possidetis de jure boundary line set out in the 1955 Treaty between France and Libya. The ICJ found it unnecessary to consider the history of the borderlands and the nomadic inhabitants.69 The ICJ also stated that the judgment “does not need to deal with the history of the dispute as argued before the United Nations and the

Organization of the African Unity.”70 Libya asked the court to consider the historical dimension of the case and to move beyond the 1955 Treaty—one of the central pillars of Libya’s case was the idea that indigenous-Ottoman rule over the disputed territories would defeat any subsequent French or Italian claims where indigenous-Ottoman effective occupation could be

68 Case Concerning the Frontier Dispute (Burkina Faso/Republic of Mali), 1986 ICJ Rep. 554. International Court of Justice, December 22. 1986. 69 Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, ICJ Reports, 1992, p. 40. 70 Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, ICJ Reports, 1992, 36.

118 proven. Chad’s position, on the other hand, “suggested that the grammar of international law could not support arguments about shared sovereignty or indigenous people endowed with legal personality during the epoch of European colonialism” (Burges, 2012, p. 139). The ICJ rejected Libya’s historical entitlement arguments, instead focusing on uti possidetis and the contours of colonial administration. The ICJ ignored Libya’s calls for retroactive recognition of the rights of indigenous peoples and also ignored Libya’s request for international law to retrospectively deem non-European peoples as subjects of international law. This was despite

Libya’s argument that the dispute involved indigenous lands, and also that the indigenous occupants were “at all relevant times, religiously, culturally, economically and politically part of the Libyan peoples” and that “on the international plane, there existed a community of title between the title of the indigenous peoples, and the rights and titles of the Ottoman Empire, passed on to Italy in 1912 and inherited by Libya in 1951.”71

Reisman (1995, p. 356) argues that the ICJ’s judgment shows a “pattern of devaluation” of indigenous land claims, as the Court didn’t ask for any “evidence on the identity, interests and wishes of the inhabitants” of the Aouzou and decided the issue “entirely on the basis of the submission by the two claimant states.” Reisman (1995) notes that neither Libya nor Chad had any interest “in examining the interests or claims of the local inhabitants,” instead using indigenous peoples instrumentally and for the purpose of establishing state territorial rights (p.

357). The view in Reisman (1995) is that the ICJ judges showed an “odd, almost eerie, personal detachment and disengagement of judicial responsibility,” not only “from past tragedies that may be irreparable, but from the contemporary, continuing tragedy of indigenous peoples

71Territorial Dispute (Libyan Arab Jamahiriya/Chad), Libya Memorial, ICJ Reports, 1992, p. 47.

119 caused by the inertial, and apparently unthinking, application of anachronistic law.” Burges

(2012) also suggests that the judgement “extends far beyond the confines of possible legal precedent” in its endorsement of “the practices of the colonial past” and the “sanctity of

European-created borders” (p. 122). The ICJ decision was “a policy choice often hidden behind the rhetoric of law” (p. 142). Castellino and Allen (2004, p. 143) concurs, finding fault with the

ICJ and its reluctance to provide redress against colonial boundaries that disregarded precolonial territorial and ethnographic parameters. Accordingly, the ICJ’s ruling in favour of

Chad and the doctrine of uti possidetis de jure is an example of the Court’s position as “a champion of colonialism’s continuing hold over international law” (p. 143).

5.5 The dissenting opinion of Judge Sette-Camara

Of the 17 judges in Territorial Dispute, Libya/Chad, 1994, Judge Sette-Camara was the only one who disagreed with the majority ICJ opinion. In his dissenting opinion, Judge Sette-

Camara described the Aouzou Strip as poor, bare, and inhospitable. He stated that it was obvious to all parties that the area was never terra nullius.72 As the disputed territory had been occupied by indigenous tribes since time immemorial, Sette-Camara agreed with the Libyan position that “the human presence prior to its beginning was constituted by the indigenous peoples and the Sublime Porte [Ottoman Empire].”73 In Sette-Camara’s view, historic title

72Territorial Dispute (Libyan Arab Jamahiriya/Chad), Dissenting Opinion, Judge Sette-Camare, ICJ Reports, 1992, p. 93. 73Territorial Dispute (Libyan Arab Jamahiriya/Chad), Dissenting Opinion, Judge Sette-Camare, ICJ Reports, 1992, p. 93.

120 indeed belonged to the indigenous peoples of the Aouzou, which had been passed to the

Ottoman Empire. Judge Sette-Camara agreed with Libya that there had never been a conventional boundary line in the area that had marked the southern frontier of Libya east of

Toummo.74 Judge Sette-Camara also called the ICJ’s reliance on colonial boundary treaties into question and he criticized the ICJ for confusing international boundary lines with the lines that divided spheres of influence.

The question before the Court, according to Sette-Camara, was “a question of title.”75

Legal title had been shown to reside first with the indigenous population, then with the

Sensoussi people, then with the Ottoman Empire, and later with Italy. The dissenting judge noted that France did not occupy the Libya-Chad borderlands until after 1929, by which time occupation by force was unlawful under international law. Sette-Camara stated that he believed that the titles to territory asserted by Libya were valid and that “neither France nor

Chad could present any sounder titles than the three layers of title” provided by Libya, which were passed down through a historical title chain.76 Sette-Camara stipulated two other possibilities for “drawing a fair and equitable line”—the first being the line on United Nations map No. 241, which would be similar but not identical to the line drawn in 1935. The second solution would be to revert to the 1899 southeast line, which Judge Sette-Camara pointed out has continued to appear on recent maps.77 The latter was, for the dissenting judge, the “most

74 Territorial Dispute (Libyan Arab Jamahiriya/Chad), Dissenting Opinion, Judge Sette-Camare, ICJ Reports, 1992, p. 93. 75 Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judge Sette Camara, Dissenting Opinion, ICJ Reports, 1992, p. 36. 76 Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judge Sette Camara, Dissenting Opinion, ICJ Reports, 1992, p. 37. 77 Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judge Sette Camara, Dissenting Opinion, ICJ Reports, 1992, p. 37.

121 obvious, and perhaps the most equitable, line” although both had would have “the advantage of dividing the Tibesti Massif between the two countries.”78 The Tibesti Massif is the region between Chad and Libya and is the traditional homeland of the Toubou. Sette-Camara noted that the Tibesti Massif would therefore be important to both countries from a defence perspective.

The solution proposed by Judge Sette-Camara in his dissenting opinion to the Territorial

Dispute, Libya/Chad, 1994, is problematic, however. An alternative to the ICJ decision would be to address the structural injustices of colonial legalism and resolve the case under the principle of self-determination. Ideally, the Toubou tribes would decide if they wanted to be part of Libya or Chad, or part of some alternative hybrid enclave. They could choose to form their own state or they could choose to institute alternative border arrangements, such as a co-management scheme that respects the colonial heritage and the rights of indigenous peoples on the ground.

In this way, the Toubou tribes would exercise constitutive and ongoing self-determination.

Constitutive self-determination is when is a group has the power to make a choice about its political status, such as when a community or peoples are able to freely choose in a referendum whether to assert or reject independent statehood (Buchanan, 2003). The Toubou could hold a referendum to determine their political future and could choose independence, secession, confederation or political autonomy. The Toubou would also be exercising ongoing self- determination, which refers to the right of a people to be collectively self-governing.

78 Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judge Sette Camara, Dissenting Opinion, ICJ Reports, 1992, p. 37.

122 The Toubou could also choose to institute alternative border arrangements, such as co- management schemes, in which they would be exercising their right to self-government, including the right to control resources and to wield political power for their own purposes.

Ricciardi (1994) states that simply asking the Toubou what they would like to do would, however, “render the complicated legal and historical arguments irrelevant and would make the fate of the Aouzou Strip a matter for political, not judicial settlement” (p. 309). The recognition of indigenous self-determination would call into question the right of the ICJ to determine title to the Aouzou Strip in the first place.

This situation illustrates the influence of the structural injustices of colonial legalism on the ICJ. International law does not permit the Court to entertain questions of indigenous self- determination. Libya and Chad agreed to have the Court adjudicate their claim only: “The

Toubous have not been consulted, and because they have no standing to appear before the

Court, they cannot present their arguments. The case thus excluded the real party in interest from any effective role in its resolution” (Riccardi, 1994, p. 309). This type of limiting either/or reasoning is exemplified in a non-indigenous example from the 1953 Minquiers and Ecrehos case between France and the United Kingdom.79 France and the U.K. asked the ICJ to decide which one of them possessed sovereignty over certain rocks and islets in the English Channel.

The parties framed the issue as a choice between the two of them, which precluded the Court from considering whether the islets belonged to any other state, or quite possibly to no state at all. As the Toubou tribes are not islands or piles of rocks, but nomadic indigenous tribes that

79 Minquiers and Ecrehos, France v. U.K., Judgment, 1953 I.C.J. 47 (Nov. 17)

123 form a homogenous ethnic and cultural unit, they might say they preferred to belong to neither the Libyan nor the Chadian state. In which case, the ICJ would not be able to assign the Aouzou

Strip in the Sahara Desert to either Libya or Chad without violating the Toubou’s right to self- determination.

5.6 Conclusion

Chad’s claim to title of the Aouzou Strip appealed to uti possidetis de jure based on the

1955 Treaty of Friendship and Good Neighbourliness. The ICJ’s judgment took Chad’s side in the and resolved the case by applying the law of treaties, thereby side-stepping any discussion of

Libyan calls for the recognition of precolonial indigenous title. Libya’s position was that they were the heirs to the territorial title that had been possessed by the Toubou tribes prior to colonization. The title was passed on to the Ottoman Empire, then to Italy, and finally to Libya.

According to Libya, the Toubou were Libyan nationals living on Libyan land. The ICJ rejected

Libya’s arguments and instead affirmed Chad’s position that boundary had been set out by

France, its colonial predecessor, in the 1955 Treaty of Friendship and Good Neighbourliness and that the delimitation should be based on the uti possidetis de jure line at the critical date of 11

August 1955. The dissenting opinion of Judge Sette-Camara took issue with the ICJ’s judgment but when offering alternative solutions as to where the draw the line, he too failed to consider the possibility of that nomadic Toubou tribes could decide for themselves if they wanted their lands to be part of Chad, part of Libya, or neither. As with the ICJ’s affirmation of the principle of uti possidetis de jure, Judge Sette-Camara’s alternative border lines were still premised on

124 the notion that the Westphalian principle of spatial organization should prevail over other principles of spatial organization. In this case, indigenous peoples were not entirely erased from history, but they were marginalized in the boundary dispute proceedings and the end result was that their lands were incorporated into the international state system.

125 CHAPTER SIX: UTI POSSIDETIS, QUEBEC SOVEREIGNTY, AND THE JAMES BAY CREE

6.1 Introduction

This chapter analyzes the law-spacetime-justice nexus within the context of the 1995

Quebec debate regarding separation from Canada. The chapter focuses on a text published by the Cree First Nations of northern Quebec and James Bay, Sovereign Injustice: Forcible Inclusion of the James Bay Cree into a Sovereign Quebec (hereafter, Sovereign Injustice). In the early

1990s, the Parti Québécois (PQ) under Jacques Parizeau was advocating for Quebec separation from Canada. The PQ argument appealed to the principle of uti possidetis, which stipulates that a newly independent Quebec would be entitled to retain its provincial borders. Upon separation, Quebec would be transformed from a province in the Canadian federation into a sovereign state. Quebec’s provincial boundaries would be transformed into international borders and the new state of Quebec would include the lands of the James Bay Cree and the

Inuit who resided in the northern part of the province. The James Bay Cree responded to the

PQ’s bid for separation from Canada with Sovereign Injustice, a polemical treatise that was addressed to Canadians, Quebeckers, along with the international community, the United

Nations, political observers, and human rights organizations. The Grand Council of Cree stated that the treatise had implications for constitutional debates within Canada and for international law, as the text provides a critique of the concepts of sovereignty, effective occupation, and territorial integrity while also addressing questions concerning aboriginal rights and the status

126 of the James Bay Cree as a self-determining people in Quebec and Canada (Oklopcic, 2019, p.

212).

Sovereign Injustice was published in 1995, following judgments of the International

Court of Justice (ICJ) in the 1986 Frontier Dispute (Burkina Faso/Republic of Mali), the 1992

Land, Island and Maritime Frontier Dispute (El Salvador/Honduras, Nicaragua Intervening), and the 1994 Territorial Dispute (Libya Arab Jamahiriya/Chad). The Cree argued that international law recognizes a right of secession for colonial or subjugated peoples only and that Québécois do not qualify; that the arguments that the PQ were using to define Quebec’s boundaries are equally available to others in Quebec, leading to the possibility of partition; and finally, that there is a double standard in relation to aboriginal peoples and the Quebec people with respect to the principle of territorial integrity. The Cree countered the Quebec nationalist arguments in support of uti possidetis with indigenous historical entitlement arguments based on the concept of time immemorial, while also clarifying the Cree status as a self-determining people with a right to determine their own political future. This chapter highlights the similarities and differences between indigenous and Quebec nationalist understandings of self-determination by clarifying the geographical and spatial goals of each. Indigenous self-determination generally takes place within an existing state, for instance, whereas nationalist self-determination aims at the creation of a new state.

127

128 6.2 Uti possidetis, the Cree, and Quebec independence

The James Bay Cree of northern Quebec have been engaged in national and transnational debates over indigenous territorial rights since 1971, when they first mobilized against the construction of the James Bay hydroelectric project on their traditional hunting grounds (Jenson and Papillon, 1998). In the early 1990s, the Grand Council of Cree entered the debate about Quebec’s status within Canada, challenging the Quebec nationalist assumption that the Cree would willingly remain within the borders of a sovereign Quebec (Radan, 2003).

The Cree referred to themselves as a self-determining people and from this perspective criticized the Quebec government’s appeal to uti possidetis. In 1992, the Grand Council of the

Crees of Quebec, representing Cree and Inuit peoples of northern Quebec, submitted a document titled Status and Rights of the James Bay Cree in the Context of Quebec’s Secession from Canada to the U.N Commission on Human Rights. In 1995, they followed with Sovereign

Injustice which took aim at one of the most contentious issues of the 1995 Quebec referendum, the potential boundaries of a newly independent Quebec nation-state.

The Parti Québécois was arguing that Quebec was entitled by international law to accede to independence with its provincial boundaries intact (Lalonde, 2002). The PQ invoked the doctrine of uti possidetis and declared that it was binding on Canadian federal authorities, stating that uti possidetis could be applied presumptively and could determine in advance the boundaries of the new Quebec state. The PQ was appealing to the principle as a fait accompli, arguing that Quebec’s entitlement to its provincial borders came from its (assumed future) status as a nation-state. The PQ argued that Quebec was entitled to the present provincial borders not only because it was a nation that consisted of a people, but because upon

129 separation it would be a state. The Quebec government commissioned a panel of five international legal experts who recommended that Quebec could assume legal entitlement of its existing boundaries under international law. The five experts appealed to the 1986 ICJ judgment in the Burkina Faso/Mali boundary case in which the ICJ ruled that uti possidetis was a general rule that “is logically connected to the phenomenon of obtaining independence, wherever it occurs.”80 While the PQ recognized that Quebec was not decolonizing and Canada was not a colonial power, it anticipated that uti possidetis could be extended to cover non- colonial contexts, as had been the cases with the administrative boundaries in Yugoslavia and in the U.S.S.R.

Uti possidetis accords pre-eminence to legal title over effective occupation as the basis of sovereignty. Its aim is to secure respect for the territorial boundaries that existed at the time that independence is achieved. This meant that Quebec’s international borders would be identical to the borders it had as a Canadian province. It also meant that Quebec would secede from Canada while retaining the territories of the indigenous peoples of Quebec. The application of uti possidetis would entail that the lands occupied by indigenous peoples would belong to the new Quebec state. This is in keeping with the colonial origins of the uti possidetis principle, as it provides legal justification for the incorporation of indigenous territories into the international state system. Gilbert (2006, p. 21) shows how this is a manifestation of colonial legalism. Early international law provided “the colonizers with a legacy for their conquest” whereas modern international law justifies “the stability of these conquests for either the colonizers or their descendant States.” The doctrine of uti possidetis denies indigenous peoples’

80 Frontier Dispute (Burkina Faso/Republic of Mali) (1986). Judgement, I.C.J. Reports 1986, p. 554.

130 capacity for territorial ownership, it disregards aboriginal territorial rights and self- determination, and it allows state leaders to avoid the issue of territorial adjustment. Accepting uti possidetis as a rule from the outset also prevents any debate over the adjustment of boundaries, limiting “the universe of possible borders to one” (Ratner, 1998, p. 591).

The Cree’s position in Sovereign Injustice was that uti possidetis is not a universal, pre- emptory norm that is applicable at all times and in all places. It is a principle, not a rule, of international law, meaning that it should allow for different applications and different options.

The Cree posited that the borders set by uti possidetis borders are not sacrosanct, as international law would have it, but may be overruled or revised in light of indigenous self- determination. The Cree argued that indigenous self-determination trumps the principle of uti possidetis, and that it was effective occupation—not legal possession—that should determine the borders of the new state. Sovereign Injustice pointed out that a unilateral application of uti possidetis would be “unjust and inappropriate” given Cree self-determination, because there is no legal rule that could “possibly force the Crees to abandon significant and long-standing historical relationships, curtail their rights of self-determination, and limit their pattern of existence to an independent Quebec” (p. 206). Thus, in 1995, the Cree and Inuit did not agree to be part of an independent Quebec; they argued that they could not be “removed” from

Canada without their consent because they had a legal right to remain in Canada if or when

Quebec became an independent state.

131 6.3 Spatiotemporalities: Federal boundary extensions and the critical date

The Quebec government argued that the critical date for the uti possidetis border determination should be the day that the Quebec province declared independence from

Canada, October 31, 1995. Critics suggested that the critical date should be July 1, 1867, the day of Canadian confederation, that is, the day on which Quebec joined the federal system in

1867 (Ratner, 1999). After Confederation, however, the Canadian government embarked on a program of boundary adjustment, extending the provincial boundaries of Quebec in 1898 and

1912, in an attempt to further integrate the province into the federal system (Lalonde, 2002).

The 1898 boundary extension extended Quebec’s territory north to the Eastmain River and legally incorporated the Montagnais and Napaskapi peoples and their territories into the province. The 1912 Quebec Boundaries Extension Act further extended northern Quebec, incorporating northern Cree and Inuit territories (Sanders, 1995). Critics argued that Quebec was not justified in claiming the 1995 borders, because the constitutional protection of

Quebec’s borders was contingent on the province remaining a part of Canada (Pavkovic and

Radan, 2007). Ratner (1996, p. 607) explains: “In the case of Quebec, secessionists seemingly seek to have their cake and eat it, too—to secede and take with them land given to Quebec as part of its integration into Canada.”

The Cree’s response in Sovereign Injustice was a map of Quebec (shown in Figure 1).

132

A Map of Quebec depicted in Sovereign Injustice: Forcible Inclusion of the James Bay Cree into a Sovereign Quebec (The Grand Council of Cree, 1995).

133

The map is divided into three sections, with the boundary extension of 1912 shown in yellow, the boundary extension of 1898 shown in green, and the Canadian provinces shown in the white background. The green and yellow sections of the map are marked with indigenous place names (Whapmaagoostui, Inujuak, Tasiujaq), while the Canadian provinces are named in the white background. The map oversimplifies Cree territorial claims, but still manages to challenge the Quebec government’s position on uti possidetis. The Cree map clarifies that Quebec’s 1995 provincial boundaries are not the only relevant borders, and also illustrates the point that the boundaries of the Canadian federal state are not sacrosanct. The Cree map likewise illustrates that the critical date is an arbitrary construct that can shift depending on the date that is deemed relevant for independence. The Cree map also makes the argument that the Cree were

“here first” through the use of indigenous place names. The Cree make two important points.

First, that provincial boundaries need not automatically turn into international boundaries and, second, that the territorial rights of the Quebec settler-state do not take precedence over the rights of the James Bay Cree.

The Cree map also represents a historical grievance (Ramos, 2000, p. 105). It illustrates the spatial injustices associated with the 1898 and 1912 boundary extensions in Quebec. The

Cree peoples were the original inhabitants of northern Quebec and they have been inhabiting their lands since time immemorial; the boundary extensions were unjust because they were undertaken without Cree consent. While the boundary extension of 1912 contained guidelines for the relationship between Canada, Quebec, and the Cree tribes, at this time neither Quebec nor Canada has formal treaties with the indigenous peoples in the original southern parts of

134 Quebec (Mohawk, Huron), or with those in the middle area that was added in 1898

(Montagnais, Naskapi), or with those in the north (Cree, Inuit, Innu) (Sanders, 1995). It wasn’t until the James Bay and Northern Quebec Agreement (JBNQA) of 1975 that the northern territories were transferred to Canada and treaty obligations were formalized (Radan, 2003).

Thus, the Cree argued that if Quebec were to secede with its 1995 boundaries intact, the new

Quebec state would include the Cree and Inuit lands of northern Quebec, and that would be an injustice, as these lands would be transferred to Quebec without Cree consent. Adhering to the critical date of confederation, July 1st, 1867, however, would mean that Quebec would secede with a state territory substantially smaller than its 1995 provincial territory. Using confederation as the critical date would mean that Quebec would have no justification for claiming James Bay and other indigenous lands. At that time, Cree and Inuit lands were not part of northern Quebec but were a part of Rupert’s Land and under the dominion of the Hudson’s

Bay Company.

6.4 Time immemorial and the Quebec settler-state

The Cree countered the Quebec government’s position on uti possidetis with a series of arguments that invoked the concepts of time immemorial and first occupancy. Sovereign

Injustice opens with the statement that the James Bay Cree have always been an organized people with land of their own:

We are the Eeyouch. We are a people. We have our own land, Eeyou Astchee. We are an

organized society of Aboriginal people forming part of the community of the world’s

135 indigenous peoples. We are the original inhabitants of our territory and have occupied

our land and governed ourselves for the past 9000 years.

The Cree identify as a self-determining people. They have occupied their lands since time immemorial and they are an organized society with their own political, social, and legal systems that exist independently of—although interact with—the Canadian, the Quebec, and the international legal system. Sovereign Injustice repeatedly appeals to historical entitlement arguments and time immemorial in order to assert the James Bay Cree and Inuit’s territorial rights over northern Quebec. The historical entitlement arguments are meant to counteract the colonial legalism of the Parti Québécois as the Grand Council of Cree repeatedly states that the

Cree and Inuit are the original inhabitants of James Bay and northern Quebec and that they have occupied their territories since before recorded time. The Cree’s rights over the Eeyou

Astchee territory derive from the fact that they have occupied the territory since time immemorial, as opposed to the Quebecois people, whose claims to the Eeyou Astchee territory in Quebec came at a much later date and largely as a result of Hydro-Quebec’s northern development schemes (Sanders, 1995).

The Cree’s concept of time immemorial distinguishes the Cree’s first-in-time attachment to their territories from historical claims on the part of the Quebecois settler state and the

Canadian settler state. The Cree’s claims to the Eeyou Astchee territory are grounded in time immemorial and first occupancy, although historical entitlement arguments do not form the entirety of the Cree critique of Quebec separation from Canada. The Cree territorial claims are based on their contention that they are a distinct people with a right to self-determination and with a right to decide their own political future. The Cree’s territorial rights are a consequence

136 of the Cree’s first and continued occupancy of the territory (Niezen, 2000). The Cree’s territorial rights were also not bequeathed to them by a settler-state; rather, the Cree claim territorial rights by virtue of being a self-determining political community with a history of continuous territorial occupation.

According to Sovereign Injustice, British and French colonizers in Canada saw indigenous territories as a possession to be “passed along with the land” and “transferred between kings as gifts, and deeded between colonial companies and governments, all without our knowledge and certainly without our consent.” The phrase “passed along with the land” is used throughout

Sovereign Injustice. According to the Cree Grand Council, in 1670 the Eeyou Astchee territory was claimed by the English Crown and named Rupert’s Land (after King Charles’s cousin).

Rupert’s Land was then transferred to the Hudson Bay’s Company. The transfer was unjust in that it ignored the indigenous people’s rights to the land: “Again no-one spoke to us or told us”

(Sovereign Injustice, p. 199). After the boundary extensions of 1898 and 1912, Rupert’s Land was divided among a number of provinces, including Quebec: “Again nobody thought to inform, let alone consult us” (Sovereign Injustice, p. 202). The James Bay Cree are “the actual owners and occupants” of the James Bay territory and they always have been, but as indigenous peoples “they simply passed with the land, without voice, without the right to determine or even know what was being done” (Sovereign Injustice, p. 177).

Boundary extensions prior to 1995 had been undertaken without Cree consent. The

Cree were not going to be “passed along with the land” again. The Quebec government was instead called to recognize the inherent rights of the Cree and other aboriginal peoples in

Quebec to their ancestral territories. To deny aboriginal self-determination claims would create

137 what the Cree called an adverse precedent: “a precedent to ignore the human right of self- determination of indigenous peoples, as well as break up an existing democratic state”

(Sovereign Injustice, p. 22). The James Bay Cree were seeking to exercise self-determination through self-government in a Canadian context, in a manner that fostered the development of their relationships with other Crees, with other aboriginal people, and with non-aboriginal peoples in Canada and Quebec; they attempted to do this in such a way that their historical relationship with the federal Crown could continue and evolve.

6.5 The spatialities of self-determination: Peoples, nations and states

The goal of the Cree was not self-determination within their own state, but self- determination within an existing state (Ramos, 2000, p. 105). This is one way that Cree self- determination differs from the national self-determination of the Quebec sovereigntists

(Niezen, 2000). Unlike Quebec nationalists, who sought legitimacy through the creation of a self-determining nation-state, the Cree instead sought legitimacy by having their right to self- determination or self-government recognized within the Canadian federation. The goal of the

Cree was not to attain a Cree state, but to attain recognition within the Canadian state. At the same time, the Grand Council of Cree had raised the possibility of partitioning Quebec and also the possibility of a new Canada, one that included self-determining and self-governing indigenous enclaves. In Grand Chief Matthew Coon Come’s phrase: “If Canada is divisible, so too is Quebec.” The Grand Council argued that they are the rightful owners of the Eeyou

Astchee territory in northern Quebec, that the 1898 and 1912 Canadian boundary extensions

138 had been unjustly undertaken without Cree and Inuit consent, and that the boundaries of an independent Quebec would be subject to modification in accordance with the rights of aboriginal peoples to self-determination and to democratic secession. If Quebec were to secede from Canada and become a sovereign state, the Cree would exercise their inherent right of self- determination and would vote to secede from the state of Quebec.

Parti Québécois politicians at the time, such as David Cliché, responded by saying that “a picture of grim chaos” would result from indigenous self-determination: “If the Crees in Quebec go their own way, the next will be the natives in British Columbia, and then the Ojibwa in northern Ontario, and eventually every native nation on three continents” (Niezen, 2003, p.

154). Claude Bachand, a member of the Québec Parliament, warned that indigenous secession would lead Canada and Quebec to become “like a piece of gruyere cheese, full of holes, with pieces of legislation that are not necessarily consistent.” The Parti Quebecois warned that the situation would “become ungovernable,” not only in Quebec but internationally (Niezen, 2003, p. 154). In this, the Quebec politicians were in keeping with those who responded to indigenous self-determination claims by citing fears of a “domino effect,” in which it was feared that indigenous separatist movements would emerge and fragment the state and promote instability in the region. The fear was that self-determination of indigenous peoples would divide the state and/or that self-determination would necessarily mean secession (Corntassel,

2008).

The James Bay Cree and the Inuit are racially, culturally, politically, and linguistically different from the Québécois French (Catholic) population. At the time of the referendum,

Niezen (2000, p. 138) notes, northern Quebec was occupied by aboriginal peoples who did not

139 share the cultural convictions of Québec sovereignty, and who did not wish to be included in a sovereign Québec. The Cree and other aboriginal peoples of Quebec and Canada had rejected attempts at assimilation, and instead claimed self-determination. Niezen also points out, however, that indigenous peoples do not “as a rule aspire toward statehood.” The rhetoric of indigenous self-determination and self-government is not normally “aimed at carving out pieces of existing states to establish breakaway indigenous peoples’ republics” (p. 138). Unlike Quebec nationalists, indigenous peoples are reluctant to invoke secession and independent statehood.

This is because (1) independent statehood would absolve the host state of treaty and other obligations and (2) because most indigenous groups are so small and their resources so meager that they would not be able to establish economically, politically, and militarily viable states. At the time of the Quebec referendum, for instance, the James Bay Cree numbered approximately

12,000 and the Inuit population was approximately 7,700, occupying a very large territory with few nonindigenous settlers (Radan, 2003).

The James Bay Cree sought to maintain relations with the Canadian and Quebec governments, but as equal partners in the comanagement of their traditional lands. Their claim to aboriginal title was constructed around an image of a single people with a common history and a common relation to the land. The Cree identity developed in tandem with and in opposition to Quebec nationalism. Jensen and Papillon (2000, p. 255) sketch out the history of the Cree as a people, noting that the concept of the “Cree people” first emerged in 1971 when eight band chiefs from northern Quebec came together to mobilize against the James Bay mega-hydroelectric project that was to be built on their traditional hunting grounds. The mobilization against the James Bay project was central to the construction of Cree identity as

140 the bands started to speak “with a single voice and defend all the communities as one.” By the

1980s, the James Bay Cree were referring to themselves as a people and were describing their claims as national ones. With Hydro-Québec and the Québec government’s Great Whale project (James Bay II, 1989)—the diversion and damming of nine free-flowing rivers to flood an area the size of Belgium—the Cree began using the “Westphalian language of sovereignty” and were claiming aboriginal rights as a nation and as a people. In 1992, the Cree started using the term Eeyouch to refer to the Cree people and Eeyou Astchee to refer to Cree territory. The terms were not used in English or French before 1992, but instead gained traction following the

Cree’s history of political mobilization and transnational activism (Smith, 2000).

Over time, the Cree evolved a strong collective identity that could be used to claim collective rights. The claim to aboriginal title was constructed around an image of a single people with a common history and a common relation to the land. Jensen and Papillon (2000, p. 248) show how national identity claims were a crucial part of the Cree strategy. The regions of Cree habitat in northern Quebec had a distinct history and a geographical remoteness, or separateness. The Cree self-identified as a distinct people. They had not been integrated in cultural terms into the polity of the Quebec province. The Cree used the language of international law to declare themselves a people and used the language of national self- determination and national identity to provide justification for the potential boundaries of the new Quebec and of Canada (Sanders, 1995, p. 258). As did the Quebec nationalists, the Cree turned to international law in order to argue that the boundaries of political community ought to be drawn around self-determining peoples. Luker (2008, p. 153) states, “it is a basic requirement for self-determination that a people must exist to exercise it.” The Cree were

141 forced to construct a collective identity as a people in order for their territorial claims to be recognized in the modern state system. This collective identity evolved within a framework of respect for the territorial integrity of existing states, and the Cree accepted that the right of self-determination was to be exercised internally, allowing the Cree to pursue their own political, economic, social, and cultural development within the Canadian context.

The Cree defined themselves as a people and then argued that territorial rights of the

Cree were equal to those of the Canadian and/or the Quebec settler-state. The Cree argued that a “yes” vote in the case regarding Quebec separation from Canada would not apply to them and that they would not respect the will of the majority of Quebeckers. They held their own referenda and found that 90% of Cree and Inuit people wished to remain in Canada. They were redrawing the boundary of the political community to correspond to their national identity and were insisting that Quebec could only leave Canada if it did so with a reduced territory. According to Jenson and Papillon (2000, p. 255), Cree opposition to the Quebec vote directly “challenged Canadians as well as Quebecer’s notions about liberal democratic rules of majority rule” in that they claimed that the Quebec referendum results would not apply to the

Cree. Cree claims of sovereignty over their lands called the sanctity of the borders of Canada and Quebec into question as the Cree nations insisted that they would not be bound to the

“democratically expressed choice of their fellow Quebecers” (p. 255). The Cree would not accept the legitimacy of a Quebec-wide referendum on sovereignty.

142 6.6 Conclusion

The chapter examined the Quebec government’s position on uti possidetis at the time of the Quebec referendum in 1995. The Parti Québécois had argued that the province of Quebec was entitled to retain its provincial borders in the event of its separation from Canada. It also stipulated that the critical date was to be the day of Quebec independence, October 30, 1995.

Following the 1986 decision of the International Court of Justice in Burkina Faso/Mali, the

Quebec government argued that “the photograph of the territory” on the critical date would enable Quebec to secede from Canada with its provincial territory intact. The critical date was important to the Quebec sovereigntist goal as it would fix the statist spatial order in time and legally “freeze” the borders on the date of independence. Critics argued, however, that the critical date should instead be the date of confederation (July 1, 1867). Some even suggested that Quebec would be entitled only to the territory in the St. Lawrence River valley that had been settled by France prior to the British Conquest of 1759 (Reid, 1997, p. 11).

The Grand Council of Cree’s response in Sovereign Injustice was to argue that both provincial and federal boundaries were synonymous with the injustices of British and French attempts at colonial conquest. They also argued that borders and boundaries of the Canadian federation are not sacrosanct and that provincial boundaries do not automatically transform into international borders in the event of separation. In the Cree’s view, their territories transcended the administrative boundaries of the province and extended into the offshore and other land areas in Canada (Sovereign Injustice, 1995, p. 206).81 The Cree’s arguments against

81Correcting the line of history: Cree land claims in Ontario Superior Court. The Cree Nation of Eeyou Istchee recently launched a claim in Ontario over a 48,000 km2 tract of land on the Ontario side of the border. Mathew Coon Come argued on the grounds of time immemorial that the land is part of the Cree

143 the legal doctrine of uti possidetis borders show how the spatial and structural injustices associated with colonial legalism resulted from the privileging of legal title over occupation as a basis of sovereignty. The Grand Council of Cree sought to overturn the Quebec position by appealing to historical entitlements arguments such as time immemorial, first occupancy, and corrective justice claims. The Cree lamented that they had repeatedly been “passed along with the land;” however, corrective justice and calls for restitution played a lesser role in the Cree arguments as the primary claim of the Cree was that they were a self-determining people with a right to decide their own political future.

The Cree arguments are important for this dissertation as they offer a point of critique for ICJ cases that also involve indigenous territorial claims. Sovereign Injustice was written in response to the possibility that the doctrine of uti possidetis would result in Cree and Inuit lands being incorporated into the new state of Quebec. Sovereign Injustice was written in the years immediately following the ICJ judgments in the 1992 Land, Island and Maritime Frontier Dispute

(El Salvador/Honduras, Nicaragua Intervening) and the 1994 Territorial Dispute (Libya Arab

Jamahiriya/Chad). In these cases, the ICJ ruled in favour of the principle of uti possidetis. These cases are examples in which indigenous peoples are “passed along with the land” (Sovereign

Injustice, 1995). These were also cases in which the decisions were based on a boundary adjudication process that failed to provide indigenous peoples with a voice in the legal

Nation. The main grievance was that Canada had breached the Cree Nation’s rights to the land during the division of Quebec and Ontario. The land claim was opposed by the Moose Cree and the Wahgoshing First Nation as being an example of overreach on the part of the Quebec Crees. Grand Chief Coon Come responded that the “politics of division” amongst the Cree is the result of the artificial divisions of aboriginal territory. The Grand Chief also stressed that “the case is not about exclusive rights and titles but that of a shared basis with other Aboriginal Nations.” The case was ultimately “an effort to repair a historic mistake” (nationnews.ca).

144 proceedings. Finally, the cases exemplify the spatial and structural injustices associated with colonial legalism in that they accord pre-eminence to legal title over occupation as a basis of sovereignty. As Reisman (1990, p. 350) notes, they are examples of how indigenous peoples are consigned to “a kind of international shadowland.”

145 CHAPTER SEVEN: CONCLUSION

This dissertation examines the interplay between international law, indigenous territorial claims and theories of international justice. The focus is on the International Court of Justice, international (ICJ) boundary disputes and the legal principle of uti possidetis de jure when adjudicating boundary disputes between (nation-) states that also involve the ancestral lands of indigenous peoples. The study was undertaken from the perspective of legal geography and was based on a modified version of critical geography’s law-space-power nexus. My argument makes three significant advances. First, I shifted the legal geography’s traditional focus from the domestic law of liberal Western states to the scale of the international. I showed how international law is a distinct body of law with its own historical geography, its own set of institutions and its own ways of making and enforcing legal precepts. I also showed how international law involves different kinds of spatial practices than in the domestic case, with legal geographers asking questions about the spatial and legal foundations of territorial sovereignty, territorial rights and territorial integrity.

Second, I followed Mariana Valverde’s (2016) critique of legal geography as being too overly concerned with space and argued for a conception of legal geography that incorporates time along with space in its theoretical framework. The dissertation sought to identify the spatiotemporalities that underpin the legal discourses of the ICJ with respect to the institutionalized exclusion of indigenous peoples from the boundary adjudication process. The concern with the spatiotemporalities can be seen in my discussion of the relationship between uti possidetis and the critical date, and in the discussion of intertemporal law in relation to the spatialities of the international state system. Another example includes the spatiotemporal

146 analysis of indigenous arguments that critique the ICJ’s position on uti possidetis. The concern with spatiotemporalities is also evident in my inquiry into the territorial dimensions of temporal concepts such as time immemorial and first priority, and again in the analysis of international boundary discourse in relation to corrective justice, treaty rights, cultural integrity arguments and concepts of indigenous self-determination.

Third, I shifted legal geography’s traditional focus on questions of power and power relations to theories of justice. I turned to theories of spatial justice in order to ask after the possibility of drawing a better line, one that takes indigenous self-determination into account when adjudicating international boundaries. I also argued for a perspective that recognizes what Catherine Lu (2017) calls the structural injustices of colonial legalism, acknowledging that international institutions such as the ICJ are the heirs to a legal worldview based on notions of hierarchy and an entitlement to conquer or subjugate other peoples. The ICJ’s continued support of the doctrine of uti possidetis is a case in point. The purpose of uti possidetis is to maintain the status quo of the international state system, however it does so at the expense of indigenous peoples and their territorial attachments. Uti possidetis continues to do the work of colonialization as it further incorporates indigenous peoples and their lands into the state system, most often without their consent.

Legal geography shows that the boundaries of the international state system reflect the operation of structural injustices that are rooted in notions of colonial entitlement. One of the claims of this dissertation is that uti possidetis replicates and perpetuates the injustices of a state system that is rooted in colonial politics of territorial division. I show how the uti possidetis upholds conventional territorial divisions through a myriad of spatiotemporal

147 strategies. The critical date, for example, is central to the doctrine of uti possidetis because it fixes the border regime at the date at which the decolonizing state first achieved independence. The critical date is a spatiotemporal concept that retrospectively “freezes” the borders of the statist spatial paradigm in the historical past. The statist paradigm makes no room for indigenous peoples’ territorial attachments, however, as uti possidetis ensures that indigenous peoples are “passed along with the land” while their territories are transferred from the original colonializing power to its state-based successor.

International borders solidify (freeze) the spatial forms of the state system in place. For the ICJ, state boundaries have traditionally been sacrosanct because they are necessary to preserve the stability of the state system. As legal geographers and critical border scholars argue, however, uti possidetis boundaries often reflect the operation of spatial hierarchies and structural injustices of colonialism. Lu’s structural approach further enables us to consider the historic and spatial injustices associated with colonial legalism as contemporary injustices that contemporary agents, such as the ICJ, produce and reproduce in their contemporary relations

(Lu, 2017). From this perspective, the spatial hierarchies and structural injustices of colonial legalism are not primarily historical but are produced and reproduced in the present through legal institutions and through other structural processes (p. 118).

The critical date, precedent and intertemporal law are examples of the structural injustices of past colonial legalism being produced in the present. With precedent, the ICJ decides present boundary cases by referring to boundary cases in the past that have a similar set of facts and that employ a similar set of legal rules. It binds the ICJ to the decisions of previous boundary dispute cases. A boundary dispute case in 2018 can be settled by referring

148 to a case in 1918. Intertemporal law is the practice of interpreting juridical facts in their original legal context and requires that the ICJ apply the laws of the past to present disputes, even if the relevant laws have evolved or changed over time. From a legal perspective, precedent and intertemporal law ensure that the basic criteria of legal justice are met, in that similar situations are treated similarly. Precedent guarantees the equality of treatment between cases. However, it also falls prey to what Khan (2011) calls the “temporal inertia” of international law, which makes it difficult for the Court to rectify the historical, spatial and structural injustices associated with the colonialism.

Resistance to change is one of law’s core attributes, however, and law is essentially conservative. Law resists change and favours stability while also binding present and future generations to a particular reading of the normative preferences of the colonial past.

Contemporary ICJ jurisprudence reproduces the defects of past judgments in contemporary contexts, which in turn creates new injustices that take shape in new contexts. The argument of this dissertation is that these injustices stem in part from the structural and spatiolegal exclusion of indigenous peoples from the international boundary adjudication process. The dissertation examined the foundations of indigenous territorial claims. Indigenous peoples have a legitimate claim to participate in the international boundary dispute process when it concerns their peoples and their land. Examples were given of historical entitlement arguments, which hold that a past connection to a territory justifies territorial in the present. Historical entitlement arguments take many forms and are used by states, nations, minority and ethnic groups, and indigenous peoples as the foundation for their territorial claims. The nationalist argument, for instance, holds that a nation should be granted rights over a territory on the

149 grounds that the territory has been historically central to the identity of the nation. Indigenous territorial claims, on the other hand, appeal to concept of time immemorial as a way of distinguishing their claims from nationalist claims of settler societies. Time immemorial makes reference to first and continuous occupation and makes the point that indigenous peoples were not only “here first,” but have been occupying their lands since before memory.

Indigenous claims to territory also include remedial claims, such as corrective justice and treaty violation arguments, and non-remedial claims, such as cultural integrity arguments.

Remedial claims seek to remedy past injustice and past dispossession. Indigenous peoples were wrongfully dispossessed from their lands (through force and through fraud). Corrective justice arguments hold that national and international institutions ought to work toward rectifying this dispossession. Remedial claims seek to remedy injustice. Indigenous claims of corrective justice and some treaty rights arguments fall under the category of remedial claims based on their appeal to the historical injustices of colonialism. Historical entitlement arguments, however, are distinct from backward-looking corrective justice arguments. Corrective justice claims derive from the fact of historic and spatial injustice, while historical entitlement derives from historic occupation. Corrective justice is also predicated on a theory that distinguishes between indigenous claims and the claims of other ethnocultural or minority groups. Aboriginal peoples are entitled to their own forms of government because they were here prior to colonial settlement and were wrongly dispossessed from their lands. Indigenous groups have suffered from historic injustices that other groups (i.e., national minorities) have not necessarily experienced (Lu, 2017, p. 158).

150 Cultural integrity arguments, on the other hand, are non-remedial territorial claims.

They are not explicitly concerned with the restitution of previously held territorial rights. The concern is not so much with reinstituting a past state of affairs, but with securing present-day rights to livelihood and to a minimal standard of sustenance. Cultural integrity arguments are also based on the recognition that indigenous peoples have socially and culturally significant spiritual ties with their lands, which in turn forms the basis for calls to self-determination and self-government. Political self-determination means that indigenous peoples are free to determine their politics status and to pursue their own economic, social and cultural interests.

Constitutive self-determination is when a group has the power to make a choice about its political status, such as when a group has the power to hold referendums and to choose whether and in what it is to be associated with other political communities. Ongoing self- determination is self-government and refers to the right of a people to be collectively self- governing. It is important to note as well that self-government does not automatically imply statehood, but consistent with the international state system in that indigenous self- government can (in theory) take place within the framework of national political institutions.

In most cases, the aim of indigenous self-determination is not to establish an independent state, but instead to rearrange the terms of integration within existing states, which in turn requires a conception of the international order that sets limits on state sovereignty. I analyzed UNDRIP in order to show how the right of self-determination applies to territory and border controls. The UNDRIP articles make reference to first occupation, corrective justice and cultural integrity while also asserting that indigenous peoples have a right to control their land, their territories and their resources. Article 36 states that “indigenous

151 peoples, in particular those divided by international borders, have the right to maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural and political, economic and social purposes, with their own members as well as other peoples across borders.” In this, UNDRIP can be seen to support open borders and comanagement schemes that respect cross-boundary indigenous relationships with the territory and with two claimant states. Following Lu (2018), I argue that taking the self-determination claims of transboundary groups requires an international structure that limits the authority of states to unilaterally control borders (p. 254). From an indigenous rights perspective, the problem with international borders is not simply that they are in the wrong place. It is also not simply that the borders are alienating. The problem is that they are closed.

The international adjudication process at the ICJ is structurally unjust in that it excludes indigenous peoples and their representatives from presenting their case directly to the Court.

The ICJ may increasingly be taking the interests of indigenous populations into account when determining the location of the boundary line (Saliternik, 2017), but this does not go far enough. Although perhaps not possible at the ICJ in the present moment—as discussed, the constitution of the ICJ is for all intents and purposes unamendable— increased participation in the boundary-making process might lead to proposals for open borders, peace parks and co- management schemes between the disputing states and indigenous peoples. Redressing the structural injustices associated with colonial boundaries also requires the transformation of exclusive state control over cross-border activities and relations (p. 254). The self- determination of indigenous peoples requires making international state boundaries more

152 porous and requires limits on states to control the movement of peoples, goods and services across international borders.

These themes carried over into the empirical sections of the dissertation, as I discussed the

Grand Council of Cree of Northern Quebec and its critique of the 1995 Parti Quebecois's position on the doctrine of uti possidetis. The PQ argued that a new Quebec state would be entitled to retain its provincial borders in the event of separation from Canada, appealing to uti possidetis as a rule international law that converts internal borders into international boundaries. The Grand Council of Cree responded to the Quebec government with the publication of Sovereign Injustice: Forcible Inclusion of the James Bay Crees and the Cree

Territory into a Sovereign Quebec (1995), a text that help to redefine the position of aboriginal peoples on the international stage as it examined questions of self-government, the definition of peoples, and assertions of indigenous self-determination and territorial control. For the purposes of this dissertation, Sovereign Injustice functions as a counter-point to the ICJ’s judgments in the 1992 Land, Island and Maritime Dispute Case between El Salvador and

Honduras and the 1994 Territorial Dispute between Libya and Chad. In these latter cases, the

ICJ ruled in favour of an interpretation of uti possidetis that failed to account for indigenous territorial claims. I showed how this failure is the result of institutional barriers that can be traced back to the spatial and structural injustices of colonial legalism.

In these latter two cases, the ICJ’s reasoning starts from the premise that the international system is composed only of bounded, unified sovereign states, each which is conceptualized as being a legal person. Indigenous peoples are excluded from the international boundary adjudication process at the ICJ, an exclusion that is mirrored in the ICJ’s support for the sanctity

153 of colonial boundaries. My argument in the chapter on the Grand Council of Cree was that the

Quebec government’s position on uti possidetis exemplifies the spatial and structural injustices associated with colonial legalism in that it privileges the territorial rights of the (nation-)state over the territorial rights of the indigenous peoples who also have a justifiable claim to the disputed lands. I began by examining the critical date in relation to uti possidetis and the partition debate, underscoring how important the critical date is for defining not only the rights of states but also the rights of the Cree and Inuit inhabitants. The critical date is that date at which the uti possidetis borders are retrospectively “frozen” for all future time, which is problematic from an indigenous rights perspective because uti possidetis freezes the violence of the colonial past in place. This led me to argue in favour of the Grand Council of Cree’s attempts to counter the doctrine of uti possidetis with historical arguments based on time immemorial and first occupancy. I also noted that there were some similarities between the indigenous arguments and Québécois ethno-nationalist arguments, as both the Cree and Québécois were making larger claims for self-determination and the right of a people to determine their own political future, be it through constitutive or ongoing political self-determination.

The Grand Council of Cree repeatedly state that they are afraid of being “passed along with the land” as their territories are transferred from one political entity to another and without their consent. This contention constitutes a very powerful critique of the ICJ boundary adjudication process, and it is precisely this point that renders the ICJ’s judgments so problematic. The Grand Council of Cree’s Sovereign Injustice was published in 1995, just three years after the ICJ awarded the ancestral lands of the Chorti Mayan, Lenti and Pipil peoples of

Central America to the Honduran state. In the Land, Island and Maritime Frontier Dispute

154 between El Salvador and Honduras (Nicaragua intervening), the ICJ ruled that indigenous peoples and their original settlement patterns were irrelevant when determining the 1821 uti possidetis line that had once divided the Spanish province of El Salvador from the province of

Honduras. Throughout the proceedings, the state lawyers make repeated reference to the indigenous inhabitants of the past, but they make no reference to the aboriginal peoples living in the disputed territories in the present. There is also no acknowledgement on the part of either state representatives or the ICJ itself that indigenous peoples might also have a vested interest in the territories under dispute.

One of the main issues for the ICJ in the El Salvador/Honduras case concerned the legal status of the titulos ejidales, the colonial land grants that were issued in the sixteenth and seventeenth century to the indigenous inhabitants of the region. El Salvador’s position was that the international boundary line dividing Honduras and El Salvador should be based on the boundaries that divided the original indigenous tribes. El Salvador argued that administrative control of the indigenous tribes and their lands was determinative for drawing the international boundary line. The example of Tecpanguisir Mountain was demonstrative in that it showed how the international lawyers representing the Salvadorian and Honduran governments sought to establish that they had control over indigenous poblaciones. I argued, however, that their interpretations of the historical moment are problematic in that the lawyers refer to the indigenous inhabitants of borderlands only in the past and only when referring to the colonial context. Present-day indigenous peoples are erased from the legal landscape—passed along with the land, as the Grand Council of Cree says—despite the fact that their ancestral lands are at the centre of the dispute.

155 In the Tecpanguisir Mountain example, El Salvador and Honduras examined a series of land grants that divided the Citalá tribes from the Ocotepeque tribes. I showed how El Salvador identified with the Citalá tribes, while Honduras identified with the Ocotepeque side. For

Honduras, however, the location of the indigenous boundaries and the indigenous communities were irrelevant when deciding the boundary line, as what mattered was the line between the two colonial provinces. This position was confirmed by the ICJ, who sided with Honduras and likewise considered indigenous geographies and histories to be irrelevant to the boundary adjudication process. The boundary adjudication process at the ICJ assumes a statist, property- based conception of territorial rights, with the point of uti possidetis being to ensure that the colonial spatial framework was transferred from the dependent provinces to the newly independent states. As I argue, uti possidetis seeks to anchor the spatial forms of colonialism in time, which in turn has the effect of freezing the original violence of colonial encounter in place. It also results in the further incorporation of indigenous lands into the state system.

All parties—Honduras, El Salvador, the ICJ—acknowledged that indigenous peoples had been occupying the borderlands since time immemorial. As a result of the structural and spatial injustices associated with colonial legalism, however, indigenous peoples were not involved in the boundary adjudication process. One reason for this exclusion is due to the fact that the official narrative was that the indigenous peoples of the borderlands had long since been assimilated into the general mestizo identity and culture of Central America. Indigenous peoples lost their land in the colonial encounter, and with time they also lost their traditional dress and language, such that they are no longer an identifiable group that can be considered separate from larger population. The Salvadoran government has since recanted this view and

156 have amended their constitution to recognize Salvadoreñan aboriginal communities, but the situation brings up questions of indigenous identity and how to respect indigenous self- determination in situations where it is obvious that it is not just indigenous peoples who have a vested interest in the border, but arguably all transboundary peoples.

A better line in the Salvadoreñan/Honduran boundary case might start by recognizing the indigenous descendants of the original Chorti Mayan, Lenti and Pipil tribes as being fully self- determining and self-governing peoples in their own right who have a justified claim to the disputed territory. A line could be drawn respecting the territorial claims of the transboundary populations, but this boundary would have to be an open border if it were to be in keeping with

Article 36 of UNDRIP and the idea that indigenous peoples ought to have the right to freely cross the borders. In other words, redrawing the line is too simplistic. What is necessary is indigenous participation in the boundary-making and boundary adjudication process along with limits placed on states with respect to their ability to control the movement of goods, services and peoples across international borders.

This same point was made in the analysis of the Libyan/Chad boundary dispute over the

Aouzou Strip in the Western Sahara, where I argued that the Toubou peoples ought to be considered a fully self-determining and self-governing people with a role to play in the boundary adjudication process. The 1994 Territorial Dispute between Libya and Chad saw the

Libyan side arguing in support of recognizing pre-colonial indigenous title. Libya acknowledged that the nomadic Toubou tribes had been criss-crossing the Sahara Desert since time immemorial. The Toubou were an organized people with a social structure, a legal system, religion, schools, and commercial links. Libya also argued that the original Toubou title should

157 be vested in the Libyan state as it had been passed down to the Libyan state through a legitimate chain of transfer from the Toubou to the Sensoussi, from the Sensoussi to the

Ottoman Empire, and from the Ottoman Empire to Italy, from Italy to Libya. Chad argued in favour of uti possidetis and held that the border line had been set out in a treaty between the previous colonial powers. The ICJ agreed, dismissing Libya’s historical arguments as irrelevant.

The ICJ judgement was in keeping with its previous judgment in El Salvador/Honduras and as such shows a pattern of devaluation with respect to indigenous peoples and their territorial attachments. The ICJ did not ask for any information on the Toubou people, nor were they concerned with Toubou wishes and interests. The Chamber based the entirety of its judgment on the submissions of the competing state parties, to the exclusion of the indigenous inhabitants of the lands. This is an example of the continuing hold that the spatial and structural injustices of colonial legalism have over the boundary dispute process. International law does not permit the ICJ to entertain questions of indigenous self-determination. It is also limiting in the sense that it presupposes that it is based on either/or reasoning—either Libya or Chad, either El Salvador or Honduras. The parties frame the issue as a choice between the two of them, which precludes the ICJ from considering whether there is a third interested party.

The argument throughout this dissertation has been that the ICJ’s continued support of uti possidetis is problematic in that it privileges state-based territorial claims over the territorial claims of indigenous peoples. It also erases the rich histories of indigenous communities, as concepts such as time immemorial and first priority are deemed irrelevant under international law. The ICJ’s judgments instead affirm the notion that the Westphalian principle of spatial organization should prevail over other principles of spatial organization. The ICJ likewise affirms

158 that contemporary international boundary disputes ought to be determined by referring to colonial boundary-making practices, despite the origins of these practices in violence, genocide and dispossession. I also argued that the way to counter the injustices of the colonial order is to support boundary adjustments that are responsive to the ongoing needs and aspirations of indigenous peoples both in the present and in the future. The point is to remake the international spatio-legal order in such a way that it allows for the possibility of a better line, one that takes indigenous self-determination and self-government into account. This would require indigenous participation in the boundary adjudication process. It would also require a conception of international state boundaries that are open, instead of closed. International state boundaries should be more porous and that the solution to international boundary disputes is to be found in cross-boundary cooperation and comanagement schemes.

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