International Law and Nomadic People

© 2012 Marco Moretti. All rights resereved.

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Published by AuthorHouse 06/22/2012

ISBN: 978-1-4678-9635-1 (sc)

ISBN: 978-1-4678-9636-8 (e)

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Contents

Acknowledgements

Foreword

Introduction

First Part:

Nomadic Peoples , From The Status Of Subjects Of Public International Law To That Of Objects Of The Internal Law Of States

Title I

Nomadic Peoples Under The Law Of Nations (From The 16 Hundreds To The First Half Of The 19th Century)

Chapter I :

Recognition Of The Sovereignty Of Nomadic Peoples In Legal Theories

Chapter II :

Nomadic Peoples And International Relations.

Title II

The Evolution Of International Law And The Denial Of The Legal Status Of Nomadic Peoples

Chapter I:

The Denial Of The Sovereignty Of Nomadic Peoples In Legal Thought.

Chapter II :

The Taking Away Of The Sovereignty Of Nomadic Peoples In The Practice Of States.

Second Part:

Nomadic Peoples Coming Back On The International Scene

Title I:

Evolution Of The International System Of Protection Of Human Rights And Recognition Of The Non-State Entities.

Chapter I:

Nomadic Peoples And The Right Of Peoples To Self-Determination.

Chapter II

Nomadic Peoples And Recognition Of The Rights Of Minorities And Indigenous Peoples.

Title II

Nomadic Peoples In Search Of A National Status

Chapter I :

The Example Of The Northern Countries

Chapter II :

The Uneven Results Of Australia And Africa

General Conclusion

Bibliography

Annexes

Annex 1 : The Lapps Codicil

Annex 2 : The Royal Proclamation Of 1763

In memory of Joe and Ilka

Acknowledgements

In the research and writing of this book I owe much to many.

First of all, I wish to express my gratitude to Professor Claude Nigoul, who supervised my research and who, by his penetrating observations, constant moral support and friendship brought a determinant contribution to the elaboration of this book.

Moreover, I owe a great debt to all the people and institutions, who greatly helped me in the research of the documents and notably, to the personnel of the Library in the Faculty of Law at the University of Nice-Sophia Antipolis, among whom I wish to single out Mrs Fatima Reutlinger for her constant assistance and Mrs Fiona Keane who corrected my writings.

Finally, but far from least, I wish to express my gratitude to Maxine and Isabel, who by their patient encouragement and affection supported me throughout these years.

Nomadic communities can no longer be ignored by international law. To refuse such a conclusion would amount to justify, a posteriori, all the genocides perpetrated in the past in the name of the alleged supremacy of a form of civilisation and political system over the others.

Besides, how to ignore these communities at a time when international law claims to be universal and recognises the legal status of a series of political entities different from States?–––How to ignore them, when it is more and more often proclaimed that the final purpose of international law is that of serving men more than abstract entities?

M. Salmon

Representative of the Mauritanian governmentAdvisory Opinion of the International Court of Justice on the status of Western Sahara (seventeenth hearing, 10th July1975)

Foreword

The work of Marco Moretti is far from banal. To be interested in nomadic peoples is more likely to be the matter of a palaeontologist in a world where there is no place for civilisation but in sedentarisation and no other choice for travellers than to disappear or to be confined within concrete walls.

To be interested in the relationship between these peoples and international law seems paradoxical as the modern States embedded in their rigid concept of territorial sovereignty seem to be poles apart from such a concern.

Do they form political societies? Do they dispose of an organised form of government? Perhaps.

Yet, they are free from borders, emancipated from the enclosure, which explains why they can not enjoy that supreme right of sovereignty - which would give them the same status as the organised States- and they are instead relegated to a status of controlled assistance whose final purpose is to assimilate them.

To confine them in reserves, to ignore their culture, traditions and laws, in order to submit them to the laws of the States who appropriate their migratory territories. Better to suppress them culturally or, at worst, to suppress them physically.

What is the role of law in all this? One is well acquainted with the role of domestic law which provides the general framework and establishes the rules of that tutelage to which nomadic peoples are submitted within their respective Nation-States. What is the role of international law? Didn’t one of the major French lawyers declare forty years ago that nomadism in itself is completely deprived of legal relevance from the viewpoint of public international law?

The great merit of Marco Moretti is to reject the prejudices which lie behind this question and to drive the reader into an erudite study on the positive international law with regard to nomadic peoples – the few of them left - in order to provide them protection against any potential genocide.

Indeed, by adopting a historical approach, this book invites the reader to a meditation about the origin of the jus gentium and of the modern States as well as about the abuses perpetrated in the past in the name of the western concept of territorial sovereignty.

When, at the beginning of the 16th century, the European countries – Spain and Portugal ahead of the others – started pillaging gold in America, massacring on their way the Aztecs and Incas, several writers, like Fransisco deVitoria interpreted the relations between the conquerors and the indigenous populations and organised them within the legal framework of the universal principles of the Law of Nature, which constituted the foundation of the Law of Nations, i.e. the international law of that time.

By postulating the principle of the natural equality of rights between the peoples and the politically organised nations, the legal writers recognised the sovereignty and legal personality of the indigenous populations- who in most cases had a nomadic style of life- exactly in the same way as they recognised the international status of States.

In spite of their form of organisation and their relation with the territory, the indigenous nomadic tribes were considered as sovereign entities and potential members of the Family of Nations.

These humanist theses, supported inter alia by St. Thomas Acquinas, were vigorously opposed by the canonical thesis, which on the contrary, regarded sovereignty as an exclusive prerogative of the Christian nations. It was this dispute which animated the celebrated debate at the Assembly of Valladolid in 1547.

Until the middle of the 19th century, therefore, the most authoritative theorists, Hugo Grotius and Emmanuel Kant included, admitted the sovereignty and legal status of nomadic peoples and in 1896 Gaston Jeze was still able to declare: It is true that the colonial States have to make their acquisition of territories preceded by treaties signed with the indigenous populations.

In law and in fact nomadic peoples were under the jurisdiction of public international law.

It was legal positivism which swept away the traditional practices and naturalist theories.

By making the territory an essential component of the State and of this latter the exclusive holder of the sovereignty, positivist theories excluded, ipso facto, nomadic peoples from the field of public international law, of which they could not claim to have a role.

Consequently, States were authorised to occupy the terrae nullius, these spaces without owners where tribes wandered who could be qualified only as savage and uncivilised, since they were unsuitable to settle within territories delimited by fixed borders.

Since then, it was the domestic law of the conquering State which unilaterally fixed the legal status of these groups, striving to bring them protection, whenever it wanted to recognise their specificity or, on the contrary, persecuting and discriminating against them, whenever it preferred to ignore their difference.

While an exacerbated concept of territorial sovereignty prevailed, the law, in most cases, refused to admit the identity of nomadic peoples whereas the policies of States discriminated against them because of their identity.

It was colonial domination, internal as well as external that determined the inversion of this tendency, preparing the return of nomadic peoples on the international scene in the last decades of the 20th century

Unquestionably, the coherence of the law of the United Nations is far from being satisfactory.

The equality of sovereign States proclaimed by the United Nations in practice places the international community on a reductive vision of its subjects governed by international law.

At the same time, the legal order set in place by the U.N. provides different measures to protect various entities going from man to humankind, including peoples and minorities.

The return of nomadic peoples on the international scene was favoured by the proclamation of the right for the colonised peoples to self-determination; this concept too, far from being clear, developed according to the balance of powers between States more than following a logic of equity.

Whatever the ambiguities inherent in the concept were, it opened the way to the ineluctable evolution of positive law that necessarily affected nomadic peoples, precisely because in its implementation, the relations of force among States prevailed on legal coherence.

Thus, the International Court of Justice was able to recognise the right for the people of Western Sahara to self-determination -in spite of their nomadic system of life and their rudimentary form of political organisation- because it considered that this population inhabited a former colonial territory. Incidentally, because of the tension generated by the Cold War, the Saharaoui became an extraordinary stake in the East-West conflict.

Starting from the advisory opinion of the Court of Justice, a new system of international law was set in place, which granted nomadic peoples, forming minorities or indigenous peoples, the right to cultural identity, to the respect of their system of life and to the use of their territories and natural resources.

Marco Moretti describes at length this process and its applications, which have multiplied since the end of the last century. He has done it with all the nuances that it deserves but he concludes without ambiguity on this affirmation of which one would like to share the optimism:

"The present evolution of international law must be put in relation to the progress of the theory of law and notably to the affirmation of the theories of legal pluralism, which postulate that the State has not got the monopoly in the production of law but every politically organised entity develops its own legal rules and, therefore, constitutes a legal system.

Furthermore, this evolution must be explained by the new humanitarian tendency of this discipline and by the increasing awareness that the final purpose of international law is that of serving man more than abstract entities : in this respect, the State is to be considered more as an instrument than as an objective to be attained."

It is up to the reader to be convinced by the savant analysis and the persuasive dialectics of the author.

Claude Nigoul

President of the European Institute of High International Studies

Introduction

Nomadic peoples have played an important role in the history of humanity. They occupy an undeniable place in the development of human arts and in the exploitation of land. However, these peoples are often the object of a negative image. The international lawyer, in particular, pays little attention to wandering communities which he qualifies as primitive and outdated.

Only forty years ago, a French jurist, Rouland Rousseau, wrote in his Handbook of Public International Law nomadism is completely destitute of judicial relevance from the point of view of Public International Law. The alleged nomadic States are only itinerant communities with elastic borders.

This lack of interest for nomadic communities is explained by the fact that these communities lie at the opposite end of the ideal model of political organization object of study of the international lawyer, which is the State. However, centralised and bureaucratic States of western-style are not necessarily better organised than the fluid system of organization of nomadic societies.

The ethnologists have long since demonstrated that the prejudices with regard to wandering societies have no foundation. Their studies show that nomadic peoples possess a strong feeling of identity wich is accompanied by a highly developed notion of the rights of possession and of use of their territory. This concept should not astonish, if one considers that the survival of these peoples depends on the possibility to have access to the vast areas of land that they use, in common, for their economic activities. The territories occupied by nomadic peoples are often delimited by naturally occurring boundaries (rivers, hills, valleys, deserts) and they are subject to different rights aiming at ensuring the existence of the group as a whole. The migrations of nomadic peoples throughout these zones, which they consider as their own, have nothing anarchical: each tribe possesses its own routes of migration, its station sites, its wells of permanent water. One can therefore regard as organised and effective this type of occupation of the territory.

These peoples, also, have proper institutions and laws, very different from one continent to another but which are characterised by a common feature, their effectiveness. In several cases, they are truly elaborated institutions such as those created by the wandering peoples of Siberia, the Vogouls, the Samoyades, the Tartars, the Tongouses and Yakoutes. Summing up, nomadic communities constitute sociological and political entities as worthy of attention and respect as any other organised human group.

It was only since the last decades of the 20th century that the international lawyers started to abandon their prejudices with respect to nomadic societies and that international law started to be interested in these groups and to protect them.

This change of attitude results in the memorable advisory opinion rendered by the International Court of Justice in 1975 concerning the legal status of Western Sahara. In its conclusion, the Court not only recognised the right for the nomadic tribes of Western Sahara to self-determination but also affirmed that the nomadic communities constituted legal systems, entitled to legal personality.

Unquestionably, the anthropological approach adopted by the High Court on this occasion was influenced by the evolution of the theory of law and particularly by the affirmation of the theories of legal pluralism: these doctrines postulate that any society develops, at different degrees, proper norms and institutions, and that consequently, the State cannot be regarded as the only existing legal system.

In its opinion, the Court, inter alia, drew attention to the fact that at least until the middle of the 19th century, the legal status and sovereignty of the societies endowed with a form of political and social organisation were recognised by public international law.

Generally, international jurists, with the exception of a few historians, paid little attention to the period ranging between the 16th to the middle of the 19th century which precedes the affirmation of positivist theories. However, this period is particularly interesting, not only because it corresponds to the phase of elaboration of the institutions on which the contemporary international law is based; but, particularly, for the character of the international law at the time which was a universal law, resulting from the principles of the Law of Nature which recognised the legal status of all the peoples and nations capable of politically organising their society.

In this context, the State was only one of the subjects of public international law, others included Kingdoms, duchies, cities, municipalities, archbishops as well as the indigenous and tribal peoples.

The 16th-19thc. period was characterised by intensive relations between the Europeans and the peoples living on the other continents. The study of the works of the authors of public international law as well as of the relations between States and nomadic populations, unquestionably, supports the conclusion that during this period (which extends over nearly three centuries), the legal status and sovereignty of nomadic populations were recognised by public international law.

Towards the middle of the 19th century, however, the attitude with regard to nomadic peoples changes, following the affirmation of positivist doctrines. Since then, the communities which had not adopted the western form of political organisation and style of life, like nomadic communities, were regarded as inferiors and their rights and legal personality were no longer recognised by jurists.

The change in legal theories corresponds to a change in the policies of States. These latter start to consider the territories inhabited by nomadic populations as vacant lands or terrae nullius and to occupy them, forcing the nomads either to be confined to one area or to be displaced in isolated reservations.

The first part of this reasearch studies the period ranging between the 16th to the end of the 19th century; it tries to describe the passage of nomadic peoples from their legal status of subjects of public international law to the status of peoples submitted in every respect to the domestic law of the conquering States, deprived of international capacity and of independence.

In Title I, we will examine the period dominated by naturalist doctrines, during which the legal personality and sovereignty of nomadic peoples were still recognised in the legal thought and mores of States. In title II, we will study the period influenced by positivist theories, which starts about the middle of the 19th century to finish at the end of the century. During this period, on the contrary, the sovereignty and legal status of nomadic peoples were denied by the legal writers as well as in the practice of States.

The second part of the book is dedicated to the study of modern international law.

Contemporary international Law, while remaining centered on the rights and prerogatives of sovereign States, is becoming increasingly sensitive to the requirement of protecting human rights, and particularly, the rights of the ethnic groups having specific cultural characteristics.

This humanitarian tendency of public international law was born at the end of the Second World War with the Universal Declaration of Human Rights and the affirmation of the right of peoples to self-determination. This right, as we will see, was normally recognised in favour of the aggregated populations who lived in the territories subjected to some form of colonial or foreign domination. On the contrary, the ethnic groups, who, like indigenous and nomadic peoples, formed minorities within these populations were not considered as eligible for the right to self-determination. It is only recently that international law admitted the need for a particular protection for the groups in question because of their specific characteristics as well as their collective interests. Consequently, new legal instruments were set up, aiming at protecting the groups qualified as indigenous peoples and minorities. In this legal framework, the rights of nomadic populations are finally taken into account by public international Law.

The existing international instruments constitute a solid legal basis, which should ensure an effective protection of the lifestyle as well as territorial rights of nomadic peoples. In addition, many countries are adapting their legislation to international standards and are introducing measures of protection in favour of the nomadic peoples living on their territories.

In the second part of our research we will analyse, in title I, the evolution of positive international law summarised above, with the affirmation of the right of peoples to self-determination and the recognition of the right of indigenous peoples and minorities; title II will try to illustrate to what extent the international standards of protection of nomadic peoples are applied in the policies of States.

First Part:

Nomadic Peoples ,

From The Status Of Subjects Of Public International Law To That Of Objects Of The Internal Law Of States

The first part of this research focuses on the period ranging between the 16 th and the end of the 19 th century. It attempts to describe the passage of nomadic populations from a fully recognised legal position of subjects of public international law to the status of peoples submitted to the domestic law of States, deprived of the sovereignty and of international legal status.

This part is separated in two distinct periods, dominated by two opposing concepts of public international law. The first period, which extends until the mid 19th century, is dominated by the influence of naturalist theories. International law resulted from the Law of Nature, whose principles received a universal application in the relations between all peoples and nations. During this period, described in title I, in legal thought and in practice, nomadic peoples were regarded as subjects of international law.

Since the second half of the 19th century, however, positivist principles asserted themselves both in the doctrine and in the practice of States and the universal principles of the Law of Nature, which had until then underlain international law, were rejected. International law from now on was considered as a positive law, resulting from the relations between States – this implies that the political entities which did not form States, were no longer recognised as actors of international law.

This second period, which is characterised by the denial of the international legal position of nomadic peoples and by the progressive annihilation of their independence, is analysed in title II.

Title I

Nomadic Peoples Under The Law Of Nations

(From The 16 Hundreds To The First Half Of The 19th Century)

It might appear strange to begin our analysis of the treatment of nomadic peoples in international law in the light of the legal principles which were in force between the 16 th and the middle of the 19 th centuries.

The principles that governed the Law of Nations at that time were different from the principles on which this discipline is currently based. One can surmise that the period in question constituted a phase of elaboration, during which the principles of international law were gradually defined and international law underwent an evolution until becoming the coherent discipline which it presently is.

The Law of Nations governing at that time the relations between the peoples and the nations was a universal law, which drew its principles from the Law of Nature. One of the essential tenets of international law at that time was that of the equality of rights and of independence for all the politically organised peoples and nations. In this respect, the nomadic communities having a form of political organisation, - i.e. the tribes united under the authority of a chief or of an assembly able to represent them collectively- constituted subjects of public international law.

Therefore, the most authoritative authors who wrote between the 16th and the first half of the 19th centuries, recognised the legal status and the sovereignty of nomadic peoples: this question will be analysed in chapter I; the study of the relations between the western States and nomadic peoples during the same period also demonstrates a recognition by States of the legal position and of the sovereign rights of the nomadic peoples with a form of political organisation of their society : this question will be tackled in chapter II.

Chapter I :

Recognition Of The Sovereignty Of Nomadic Peoples In Legal Theories

In the 16 th century, when the first European adventurers set out on the discovery and occupation of other continents, the question to know which legal rules and treatment were to be applied in respect to the peoples who originally occupied those lands was put to the jurists.

Following the massacres perpetrated by the Spaniards and the Portuguese respectively, of the Aztec in Mexico and Incas in Peru, several writers started to react to the brutal treatment of these populations, demanding the respect for their sovereignty and independence. Among these, Fransisco de Vitoria affirms that all the peoples and the nations organised in political societies constitute sovereign entities, entitled to the same rights, which resulted from the Law of Nature.

In North America, the Europeans were confronted with populations less civilised than the Indians of Central America, consisting mainly in nomadic hunters endowed with a very simple form of political organisation. Did these peoples consequently have effective rights of sovereignty and property over their territories?

In the 16th century, the most authoritative doctrines were favourable to the recognition of the rights of these populations. The territories that these peoples occupied, though they were not clearly delimited, belonged to them to the exclusion of any other people.

Therefore, the Europeans who intended to settle on the territories in question were required to respect the original sovereignty of the indigenous inhabitants and to apply in the relations with them the principles of the Law of Nations, and in particular the principle according to which conquest or the treaties of cession were the methods that must to be used in order to occupy a territory under the sovereignty of another nation.

Thereafter, these principles will no longer be called into question in legal literature until the middle of the 19th century. Only, Vattel distinguished himself from the other writers, by affirming, at the beginning of the 18th century, that the territories of the nomads could be partially occupied by the Europeans who intended to set them to cultivation

1.1. The universality of the Law of Nations

When at the end of the 15th century the first European explorers discovered the American continent, these territories were inhabited by primitive tribes in a natural state, who, in most cases, had a nomadic or semi-nomadic style of life.

Then, for the authors of international law at the time, the question arose of knowing which legal rules were to be applied in relation to the non-civilised communities, if those rules came under the sphere of the jus gentium and, therefore, if the non-civilised communities were to be regarded as sovereign entities, enjoying international legal status.

As a general rule, the idea of the universality of the Law of Nations characterised the period in question. For all legal writers, international law derived from a universal law of nature, which constituted a common legal conscience linking all the peoples and nations, independently of their origin, civilisation or geographical situation.

Quod naturalis ratio inter omnes gentes constituit vocatur jus gentium: proclaimed Vitoria, meaning that the jus gentium was the law founded on natural reason and governing all nations¹- ² - ³

In general, whatever the ideological content of the Law of Nature is, be it of moral and religious origin, as in the works of Victoria and of the other Spanish scholars of 16th century, or human and rational, e.g. Grotius and the enlightened authors of the 17th and 18th century ( Pufendorf, Wolff, and Vattel), the idea of the existence of a series of universal principles deriving from the Law of Nature and applying to all nations was common to all of these writers⁴.

Influenced by naturalist theories -and particularly by the idea of the natural equality between all peoples and nations-, and consolidated by a practice of the European States of frequent and continuous relationships with the peoples living on the other continents, legal writers conceived the international community as a universal family, which included peoples differing in culture, religion and levels of development. According to Vattel "all the sovereign and independent States governing themselves by their own authority and their laws are ipso facto members of the natural Society of Nations⁵.

Corollary to this concept was the idea of the absence of constitutivism, in the sense that no member of the Family of Nations was authorised to arbitrarily use the legal instrument of recognition in order to admit or to refuse the admission to other members⁶.

No classic writer of the Law of Nations, not even the early positivists of the late eighteenth century such as G.F. de Martens, even conceived a theory of recognition of a constitutive character. Acts of recognition, if they occurred in practice, were declaratory in nature⁷.

The period considered corresponds to a phase of evolution of the Law of Nations, during which the principles of this law were progressively specified until they developed into a self-contained legal discipline.

Following the development of international relations, a number of rules started to be codified, which derived from the common law and the treaties in force between the most civilised nations. These norms formed what was called positive international law, a term used to distinguish this law from natural law or "jus gentium naturali".

It is worth stressing that not only had these rules a universal application, but also that indigenous peoples exerted an influence on their elaboration.

Although the relationships between the Europeans and the peoples living on the other continents were often determined by the imposition of western legal concepts, it is nevertheless true that in several circumstances certain legal concepts specific to indigenous cultures were included in the texts of the agreements, contributing, at least during an initial period, to the elaboration of a universal international positive law. An attentive analysis of the content of these agreements illustrates the influence that the indigenous populations exerted on the development of the rules of positive international law. Some examples are the institutes of maritime law, the jurisdiction exerted on merchants in foreign territories (including several elements of the regime of capitulation) and the exchange of prisoners.

1.2. The equality between all the peoples and nations.

From the universal principles of the Law of Nature, it results that all independent peoples, including the wild and wandering peoples, were to be regarded as sovereign and potential members of the Family of Nations.

In the 16th century, Fransisco de Vitoria was the first writer to state this concept clearly in his work Leçons sur les droits des Indiens, in which he defended the natural right of the American Indians to independence and sovereignty⁸. One hundred years later, Grotius expressed the same ideas in "Mare Liberum" with regard to the Indians inhabiting the Molucca Islands, which had just been discovered by the Portuguese⁹.

Thereafter, the recognition of the legal status and sovereignty of indigenous peoples was affirmed by the majority of writers between the 16th and the 18th centuries.

However, the recognition of sovereign rights to these populations was not automatic but was subordinated to the evaluation of the existence within these communities of a form, more or less developed, of political organisation of the society combined with a state of independence.

These forms of political organisation were not to necessarily correspond to the political structure specific to European countries _ characterised by a centralised power, a bureaucratic administration, a permanent apparatus of coercion and codified laws _ nor were the nomadic societies required to perform the ensemble of the functions which characterise modern States. Indeed, international law of the time did not require a particular form of political organisation or of government as "conditio sine qua non" in order to be consider a political entity as a subject of international law. On the contrary, a number of communities very different from the point of view of their size and political organisation were included in this category¹⁰-¹¹ -¹²

There is no doubt that, at the moment of the first contacts with Europeans, the indigenous societies, in all parts of the world, had developed proper, original and functional forms of political organisation.