This book is hard to read—not because of its style or complexity, but because its message is shocking. Reading it produces the type of shock we would feel on discovering that Abraham Lincoln beat his housekeeper or that Nelson Mandela was a drug addict. In the same vein, Hiroshi Fukurai and Richard Krooth urgently challenge the cherished liberal ideologies of human progress and expanding prosperity.
Hiroshi Fukurai and Richard Krooth have exposed in this book the seamy underbelly of the myths and monuments of the expansion and dominance of modern Western civilization. Their message is that the success of the West is founded on state law that privileges possessive individualismFootnote 1 and acquisitive corporatism at the expense of indigenous nations and peoples. The authors use the term “original nations” to distinguish such traditional societies from modern states—a concept that is often also conveyed by the term “First Nations.” Fukurai and Krooth explore how the decline of such peoples and degradation of their traditional lands became collateral damage in the power and money plays staged by states and major corporations with the support of most legal institutions. The authors’ hope is that the original nations of the world can claim their rightful place in global affairs where they have so far been relegated to subordinate status within sovereign states that have usurped the role and identity of “nations”—hence the need for a genuine “Inter-National” legal order in which original nations are recognized as fully empowered legal actors.
If you are prepared for your ideas of international law and corporate social responsibility to be challenged, read on. Fukurai and Krooth trace the suppression and, in many cases, eradication of original nations and peoples to the rise of the modern Western state and its symbiotic relationship with large industrial and commercial corporations. Both the political entity known as the state and the economic form of the corporation claimed legal personhood and all the rights and privileges that became associated with the neoliberal vision of “possessive individualism.” In the case of the state that included property rights over all the territory within its self-proclaimed boundaries and for the corporation, it entailed demanding the freedom of action that it asserted was essential for an economically productive actor. As a result, the state absorbed original nations and peoples as its rightful property and defended its exclusive jurisdiction over them through a mutually beneficial arrangement with other states that became modern international law. Corporations used their state-recognized and supported powers to exploit resources found within the lands of original nations and peoples, and eventually helped to create international agencies that assert their rights and status even against states.
The passion animating these ideas is best shown through the authors’ own words:
Since the state was largely formed by imposing itself upon unconsenting original nations and peoples, nation peoples who resisted the state encroachment have been referred to, and often vilified by the state, as rebels, landless peasants, tribal nationalists, clans people, savages, military insurgents, and communist terrorists, among many other demonized terms. According to the most recent U.N. estimates, 370 million indigenous populations still exist in 5,000 culturally distinct nations, many of which also continue to practice a self-sustaining culture in a self-managed and self-governed society. (p. 50, notes omitted)
Although the massive privatization of nature and ecosystems has led to horrifying consequences, it has had the full blessing of both domestic and international laws. ONAIL proposes to eliminate the matrix of legal mechanisms and the structure of law that have prioritized economic growth and privileged private profit, while protecting corporate control and acquisition of resources and property to the detriment of the interests and rights of the original nations and peoples. (p. 167)
The dire consequences of state-building and corporate expansion in Asia and beyond are traced in Chapter 3. Here, we learn about the Ryukyu nation of Okinawa, absorbed by imperial Japan and then occupied by the American military with treaty immunity from the jurisdiction of local courts. The authors note that this impunity has recently been successfully challenged through local judicial processes—the Japanese grand-jury system that has allowed local peoples to override decisions protecting foreign forces. The sufferings of the Moro Nation of Mindanao and the Kurdish peoples of Iraq are similarly described as stemming from state suppression and American military force. Other oppressed groups whose struggles are recorded are the Rohingya in Myanmar, the West Papuans of Indonesia, and the Muslim majority of Kashmir.
All is not doom and gloom, however, because the authors also present some inspiring stories of the resilience and resistance of original nations and peoples. Chapter 5 tells the story of the Lakota Nation, enveloped by the westward expansion of the early US, its survival, and resurgence. We learn that this nation has invoked the international law of treaties and multistate agreements such as the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) to declare its independence and secession from the US. The Republic of Lakotah amended its Constitution accordingly and these events have stimulated constitutional activism amongst original nations worldwide. In addition to claims of sovereignty, many nations have proclaimed and entrenched rights of nature in their Constitutions to protect against further degradation of their homelands. To date, existing states have declined to even consider and debate such claims to sovereignty despite the wide acceptance of UNDRIP.Footnote 2
Chapter 7 is devoted to jurisdictional struggles of original nations and peoples against states and records the successes of the Zapatista and the Municipio of Cherán in Mexico as well as the promise of the “Indigenous jury” system in Argentina that amplifies the voices of original peoples in state judicial institutions on their homelands.
The “Indigenous jury” is an example of the tension noticed in the book between invoking the legal processes of the state, and thereby seemingly acceding to its jurisdiction, and challenging that jurisdiction completely. The tactical and strategic implications of this choice present difficult choices for original nations and peoples. In rare cases such as that of Mexico, existing state Constitutions may allow recognition of internal zones of self-determination that benefitted the Zapatista and the people of Cherán. However, if one supposes that contemporary states are not likely to implode or wither away in the foreseeable future, this will be a continuing problem for many faced with such a strategic dilemma.
The authors present many good arguments for asserting rights and claiming protections on behalf of original nations and peoples arising out of what Pentassuglia has called “primordial title” and “pristine national authenticity.”Footnote 3 The book does not attempt to explore in depth the promise of sustainable stewardship of the Earth offered by original nations and peoples but, in Chapter 6, gives examples of some successes of “earth jurisprudence” and references other useful sources.
Original Nation Approaches to Inter-National Law is best characterized as a powerful manifesto for redemptive action. It is not a metaphysical account of the ontology and epistemology of the worldview of original nations and peoples that values and distinguishes it from that of civil society of consumers and neoliberal sovereign states—such studies can be found elsewhere. The significant contribution of this book is that the authors outline the cognitive shift in thinking about “nations” and “states” and the concerted legal and political action needed to restore the status and stature of original nations and peoples at a global level, such as the work of an “Inter-National” grand jury (based on the Japanese example) and the International Rights of Nature Tribunal. Readers will find ample references from numerous sources, which makes the book a valuable resource for further research. There is much yet to be done here and books to be written.
