Indigenous Peoples' Identity vs. State's Right to Integrity: An Asia Overview.

• Author: Butrymowicz, Magdalena

Indigenous inhabitants are usually understood as peoples consistently living on a specific territory, and tribal peoples are often people forcibly resettled from another place yet having maintained tribal social structures. (1) When the topic of indigenous peoples' rights is routinely referred to in international policy or legal fora, it often opens up a discussion concerning a given state's instability 'from the inside'. In particular, the issues of self-determination and the right to identity, raises some necessary concerns on the part of state entities. It is therefore worth analysing the issue of the right to identity in the context of normative guarantees to state integrity.

1. Definitions of the state

   The theory of state encompasses numerous, frequently contradictory, definitions as well as concepts and theories regarding its origins and formation. Thomas Hobbes (1588-1679) often provides reference for early conceptions of the modern state, asserting that our original instinct for survival relates to a permanent state of fear and anxiety. This, in turn, entails a state of a continuous conflict with neighbours, making consistent peace and affluence an exception not a norm; in Hobbes's view, the solution to this situation is subjecting an otherwise wild and independent human nature to the governing power of a single agency. A ruler in this capacity is not a party to a contract, and Hobbes's state model has often been cast as an ideal model for absolute or totalitarian rule. Hobbes's notional state also assumed the exclusive participation of the people in its creation: the state is planned and created in such a way so as to ensure absolute safety, welfare and compliance in a collective and incontestable consensus. (2)

   An early critic of Hobbes's influential rationale for a state was Samuel von Pufendorf (1632-1694), who asserted the obligation to protect society from a ruler; he understood the state as a useful organisation, protecting against those who acted against natural law. John Locke (1632-1704) further developed a protected collective cohesion with the seminal concept of 'social contract', where, similar to Pufendorf, a principle of reciprocity governed the relation between people and rule or state. In Locke's view, Hobbe's prehistoric man was not led by fear, but acting under the influence of the laws of nature he was bound to, notably the inviolability of life, freedom and the property of other; even in a primal state, he could expect reciprocity from others. Being aware of such reciprocity, the notional prehistoric man surrendered power and assigned it to the community, with a possibility of revoking the rights established by it. A state can be said to be born on the basis of an agreement formulated in this way, and people unite in one such community become subjected to jointly established norms and laws. Tribunals can be created to which they could appeal and which also punished infringements, and the members of the community could elect the actors in such tribunals from among themselves, with that act of empowerment being a seminal moment of what we understand as 'civil society'. As in a process of election, however, the will of the majority tended to prevail over the minority or individual, and a main task of authority was not just to exercise power but to protect the limited power of others, such as protecting the ownership rights of its members. Locke's original political theory led to a widespread rejection of the arbitrary power of absolute rule and presented the possibility of replacing an authority (that violates rights) with an election of the people who had established it in the first place; new representative forms of government could be devises that carried with it an obligation to act in accordance with the expectations of the community that elected it. (3) Later, the concept of state was defined by its institutionalisation and legal complexification of such processes and its functionalism (in a psychological and social context). From a legal point of view, the modern state was primarily defined during the 7th Pan-American Conference in Montevideo (Uruguay) publishing the now famous international legal statement of the Montevideo Convention on the Rights and Duties of States (1933). Three factors herein define the modern state: a territory, people and power. Three criteria of the structural elements of a state are legally decisive: power over a given territory has to be effective, which means that the state manages a stable population as much as borders and boundaries unilaterally; and as a state it is recognised as such by other state entities (of which it engages international relations). Thus, the state has the facility to manage legal relations with other state entities, both productive and potentially conflicting. In this sense, independence and sovereignty is the basis of international relations. (4)

   Without analyzing the modern concept of the state in detail, there is one dimension of this original international legal definition of state that is central to this article: that a stable population living on a geographically defined territory must identify with that state as well as being subject to it. (5) Some similarities in conceptualisation can be also traced in some Asian philosophies, (6) which often place the filial piety (7) as a root of all common virtue, and as cornerstone of morality and the foundation of the state. For Han China, the foundation of the state was the family, where central authorities negotiate power sharing with local clans. In this sense, the state and the extended family unit mirror each other, except that there is little space for the development of an interrelated entity of civil order or society. (8) Professor Zhiwel Tong has defined the state as the subject of power, not the subject of rights; the subject of state ownership is the state, and ownership is a civil right, which means that the state is one of the subjects of civil rights, and also enjoys civil rights. (9) On the other hand, Indian jurist and reformer, Babasaheb Ambedkar (1891-1956), perceived the state as a necessary institution but acting under a categorical condition. The source of state's existence comes from society, economy and religion, and the condition is a necessary faith from the people in the validity and moral authority of the state. If that is not the case, the state is just a facade for anarchy (or law-less rule, in this case the rulership of the state). The state therefore has a pragmatic role to play: firstly, it is responsible for maintaining the right of its subjects to life and the forms of liberty that allow for such a faith to be expressed; secondly, the state offers justice or the arbitration of collective co-existence and the exercise of the power of liberty; thirdly, the state instils trust by promising freedom from want and from fear. In this sense, the state is a tool or an instrument used to maintain a citizens' happiness. (10) The last voice to be evoked in this narrative discussion on the definition of the state is Mohanda Karamchand Gandhi (1869-1948), who largely rejected Western concepts of state and state sovereignty. Building his political philosophy on the dharma--the Hindu concept of 'influences', which shape the moral feeling and the character of people and become the code of conduct--Gandhi defined this general conscience of a people as central to state rule. This was not a fixed code of rules, but a living power, which at once rules, develops and evaluates a society. Christian ethics and humanism also played a role in Gandhi's framework, which amounted to a total critique of the western concept of state as the organisation of violence. Informed by his personal experience of colonial state institutions, Gandhi's priorities were the harmonious freedom and moral sovereignty of the social collective. Against Hobbes, individuals were not irreducibly individual and not only collective in terms of their investing their own self-determination in an authoritarian entity of pure abstract and indifferent rule. The ideal state (Swaraj) is where railways, hospitals, army and navy, as well as law and courts, exist, but are governed by free people, free from bureaucratic interments of oppression, and free not to conform to collective regulation. Government exists, but is based on popular consent, and the same principles of equality, truth and non-violence of all society; government has a function but no internal superiority to other forms of social organisation. (11)

   This brief discussion is concluded with the observation that traditional definitions of the state, West and East, assume a certain identification, trust, assent or faith in the state (or entity of rule) on behalf of a coherent and cohesive 'people'. How is state defined under conditions of irreconcilable ethnic diversity, where distinct groupings and absolute forms of unity and identity between separate groups within a single territory, and where the state is experienced by these groups as an imposition and an artificial construct. A condition of tacit (and perhaps open) conflict between a people group and the state may persist, which may lead to...