Original Nation Approaches to 'International' Law (Onail): Decoupling of the Nation and the State and the Search for New Legal Orders

Abstract

Much of the combat and conflict around the globe today involves struggles between the nation and the state. The state’s promotion of globalization and neoliberal policies has long resulted in the radical transformation of the nation’s homeland, propelled the forced eviction and displacement of already-marginalized nations and peoples, contaminated the natural environment, and destroyed much cultural and biological diversity. In areas of strong opposition and resistance by the nation and peoples, the state has powerfully mobilized state troopers and privately-financed paramilitary forces, often employing arbitrary arrests, interrogation, torture, extrajudicial killings, and other human rights violations. These actions are justified under the rhetoric of the state’s campaign against terrorism or the pretext of national security concerns and respect for the rule of law imposed by the state on the nation and peoples. A fundamentally different interpretation of history, geography, politics, and the role of international law emerges when the perspective of the nation and peoples is placed at the center of the geopolitical analysis of worldly affairs. Instead of focusing on the state and international organizations as traditional analyses tend to do, the Original Nation approach produces a diametrically-opposed “on the ground” and “bottom-up” portrait of the significance of the nation and peoples in domestic and international affairs, problems, conflicts, and possible remedies. Dominant and traditional scholarship tends to interpret the world as enclosed by a fixated, legal network of 193 United Nations (U.N.) member-states and other internationally recognized organizations and relegates the nation and peoples to the status of ethnic groups, religious minorities, landless peasants, separatists, rebels, terrorists, or independent nationalists, depending upon the particular perceived threats the nation’s resistance movement poses to the state. While states continue to occupy most of the world’s five thousand nations and peoples, the Original Nation analysis, in contrast, allows the critical examination of how colonial empires and modern states have invaded, exploited, and appropriated ancestral lands and resources of nations and peoples. The Original Nation approach focuses on the predatory behavior of international law and its destructive expansion and application around the globe. The Original Nation Approaches to “Inter-National” Law (ONAIL) recognizes that international law serves as the prime instrument of the tripartite alliance of the state, corporate interests, and multilateral institutions in jeopardizing the future of the world’s natural environment and biological and cultural diversity – all of which need to be preserved for future generations. The Original Nation scholarship also challenges the legitimacy of the state as a viable geopolitical actor in the future. To elucidate the basic tenet of ONAIL, this paper is structured in the following way. The first section defines the nation and the state, as the misuse of these terms and related concepts has gravely obscured, distorted, and misrepresented the identity, role of law, geography, history, and reasons and causes behind conflicts and wars, regional struggles, refugee flows, genocide, human rights violations, and rapidly-degrading condition of natural environment and ecosystems. Terms such as the state, nation, and nation-state have been used interchangeably, despite the fact that their origins, geographies, histories, and relations to the role of law are quite distinct. The second section explains why the neologism, “Original Nation,” is used in this paper to delineate the nation, peoples, history, culture, identity, and tradition, instead of “Fourth World,” a common terminology that has been used in the analysis of the world system. Such terminology has been predicated on the scholarship of a three-tiered system – the First, Second, and Third Worlds – derived from the state-centric, geopolitical model that ONAIL opposes, challenges, and tries to overcome. The third section focuses on actual examples of ongoing struggles of multiple nations and peoples against the intrusion of states – such as state-sponsored terrorism and state-supported corporate exploitation – that have resulted in ethnocide and ecocide in the homeland of nations and peoples. The U.S. government recognized in 1950 that the most immediate crises of “nation-state conflicts,” including an “indigenous nationalist revolution,” would “arise in Asia.”6 Since then, major struggles between the nation and the state have been concentrated in Asia, including the Moro in the Philippines, the Rohingya in Myanmar, the West Papua in Indonesia, the Kashmir at the India and Pakistan borders, and the Kurd in the southwestern region of Asia. These struggles stem from respective nations’ resistance against states’ denial of the right to self-determination, state-sponsored unsustainable environmental projects in the homeland, the usurpation of natural resources, and the eradication of biological and cultural diversity. The analysis of the theoretical basis of ONAIL is the focus of the fourth section. Specific discussions focus on the critique of simultaneous processes of the “state-building” and “nation-destroying” project; the state’s role in serving as a prime instrument of international law against the interest of nations and peoples; possibilities for constructing a true alliance among nations against the state and “international” organizations and corporations; the recognition of the nation’s rights under international law and judgments of international tribunals largely organized by the nation and peoples; ONAIL’s strong opposition to the privatization of the ancestral land, as well as the practice of biopiracy and bio-colonialism by intellectually “propertizing” nations’ knowledge; and the preservation of cultural and biological diversity by cultivating potential collaborations with the state’s judicial and legislative sectors. The last section concludes with remarks on the future of the ONAIL scholarship and possible alliance-building among nations, peoples, scholars, on-the-ground activists, grassroots organizations, and others.