Deconstructing the Nation-State, Part I: TWAIL and Indigenous Perspectives

Featured image: James Gillray, "The Plumb-pudding in danger, or, State Epicures taking un Petit Souper" (1805), depicting William Pitt and Napoleon Bonaparte carving out a plum pudding bearing the world map. (Wikimedia Commons)

The nation-state remains the central unit of participation, recognition, and legitimacy in international law, but at what cost? In this series, the editors of Juris Gentium Law Review begin a two-part conversation exploring the enduring authority of the nation-state model and its consequences for Indigenous and Third World communities. Through a powerful conversation with Prof. Sujith Xavier and Prof. Janice Makokis, we examine how international law’s statist logic often marginalizes a multitude of indigenous and non-Western modes of social organization. This first part, particularly, focuses on unpacking the colonial underpinnings of modern statehood and how this framework continues to shape—and constrain—liberation movements around the world. The second part of the series can be read afterwards here.

FELICE: Firstly, would each of you like to introduce yourselves and your backgrounds?

Prof. MAKOKIS: Tanisi, wahpimaskwasis nitisikason nehiyaw iskwew niya onicikiskwaponihk ohci niya., (In Cree, I introduced my Cree name, Little White Bear, and I’m from the Saddle Lake Cree Nation in Treaty No. 6 territory, which is called Alberta, Canada). I’m a Cree woman, I’ve been born, raised, and lived in my community for almost my whole life. My academic background and training is in law, policy, and governance. I also do a lot of work on grassroots organizing and Indigenous rights advocacy at the international level—I’ve done work at the UN, advocating for Indigenous peoples and nations at various UN bodies. So, I’m really excited to be able to speak with you about some of my perspectives and experiences.

Prof. XAVIER: Hello, my name is Sujith Xavier. I’m currently speaking from the traditional territories of the Mississauga Credits, that is now known as Toronto, and I work at the University of Windsor Faculty of Law, on the traditional territories of the Anishinaabe people. I teach Administrative Law, Law and Race, Access to Justice, and International Law. Currently, I’m also working on projects centered around my curiosity about the relationship between law, violence, and accountability. The reason for my curiosity in these three areas is because I’m a refugee from what is now known as Sri Lanka—my mom and I fled the civil war when I was 9 years old, and we came to these lands and waters now known as Canada/Turtle Island. I’ve also worked in Palestine, in the northern parts of Sri Lanka, at the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, and appeared before the Federal Court of Canada Federal Court of Appeal and the Supreme Court.

I. Interrogating the Nation-State

FELICE: Our topic today is the issue of the nation-state model, seeing how it significantly underscores the current system of international law (more commonly phrased as statehood—a criteria to be part of many human rights conventions, to attain UN membership, etc). This has also affected the struggles of colonized and Indigenous peoples; how “self-determination” and “independence” under the international legal order often mean assuming the form of a nation-state and being recognized as a nation-state. Thus the nation-state, in this way, has become the dominating vehicle of liberation.

Hence to start, we’d love your opinions on the modern nation-state model and its principality in international law. As we know, behind these dominant narratives of global universalism, therein often lies deeply-rooted colonial constructs (e.g. Prof. Xavier’s works over the years have criticized the Eurocentric Westphalian state model (p. 70); while Prof. Makokis’ thesis touched on the concept of self-determination, how it attains a different meaning under the indigenous Nehiyaw traditions (pp. 20-22), contra Western power-knowledge understandings of self-determination). So, what are your perspectives on the modern nation-state model and its centrality in international law?

Prof. XAVIER: So, let me take the TWAIL perspective. Going back to some of the classic texts—Anthony Anghie, Makau Mutua, James Gathii, Vasuki Nesiah, and many others—some of the TWAIL scholars’ central claims is that international law is the handmaiden of colonialism and imperialism. International law was used and deployed in the process of colonization and conquest. Some would go so far as to say that international law was forged as a result of the encounter between people of the Global South and the European colonizers.

A nation-state is a direct descendant of empires: the Netherlands was formerly the Dutch empire, the United Kingdom was formerly the British empire. And what has happened so far, is that statehood has been extended to former colonies as a way to bring people into this global order. Through that lens, we realize that individual communities with their respective politics, cultural practices, and legal orders were expected to perform and become States. The way to do this is by satisfying the criteria of the 1934 Montevideo Convention on the Rights and Duties of States—that is the four elements of statehood required by the global order: permanent population, defined territory, effective government, and the capacity to enter into relations with other states.

Here is where things become really fascinating. If we think about Palestine (the West Bank and Gaza)—almost 130 states have recognized this entity as Palestine. But its borders are not “defined”, its population is not “permanent” (constantly subject to who can enter and leave), and the government is politically handcuffed. At the same time, the global hegemons do not recognize Palestine as a state; here, you see how the definition of statehood itself is contested. If we were to apply a TWAIL lens (that is, to uncover the embedded racial hierarchies within international law), we would end up with some of the following claims:

1. Let’s think about “permanent population”. If I were to go back to my lands; the lands that the Portuguese arrived on in 1504 consisted of many different nations. Then the Dutch came, then the British, and they enforced a particular structure onto those lands and peoples. Before 1504, we were all equal and moving in and out of each other’s communities. Now suddenly, the permanent population of the North and East became “Tamils”. The Lowland Sinhalese and Highland Sinhalese became this singular entity known as “Sinhalese”, and suddenly we are now “permanent populations” that are not allowed to move in and out of our respective spaces—because this category has been put on us. This form of racialization was then placed on us. In the 1800s, when the Aryan race theory was spreading all over the world, it arrived in Sri Lanka (which was known then as Ceylon). The Sinhalese had a proximity to whiteness, because they trace their lineage back to an Aryan race or Bengalis. While us Tamils, because our lineage is traced back to the Dravidians, became the “barbarians”, and the racial construction began to unfold regarding who should be left in charge and who should be the minority community.

2. We can apply the same analysis to “defined territory”. Palestine is a really good example; on 18 May 1948, Israel declared independence, which was recognized by the United Nations (UN). But its territories were never fully defined, and that is exactly what allowed Israel to engage in expansion. Until now, we are witnessing colonial expansion—of this “defined territory”—through genocide, as a way to settle and eliminate the Indigenous peoples of Palestine.

So to return to my perspective on statehood and the Westphalian nation-state idea (I think it’s a trap), we have to be really cognizant of what it means to be a state. To be a state is to have a monopoly on violence. A state has the legitimate ability to engage in violent conduct, and it does so to protect its legitimacy.

What we’re talking about regarding the Westphalian state model is who has access to violence, and the state is very protective of its monopoly on violence. I’m currently working on something regarding situations like October 7th, or in my case pre-2009 (before when the Tamil Tigers were defeated, and the genocide unfolded in Northern Sri Lanka)—how the central question in international law always was, “how do you defend the Tamil Tigers’ use of violence? Do you condone the LTTE?”, “but what about Hamas’ violence? Do you condone Hamas?” This, in that sense, relates to how we historicize conversations around the Westphalian nation-state, and how people are trapped in this definition of a nation-state [as the legitimate arbiter of violence].

Prof. MAKOKIS: I’d like to go back to the concepts of “defined territory” and “effective government”. If I were to look at the Montevideo Convention, I’d argue that indigenous peoples fit every single criterion. We have territories, governments, populations, and the capacity to enter into relations through treaties, which we have with the crown of Great Britain, and which Canada is legally obligated to implement. Now, they are not doing so—as they consistently undermine and delegitimize the international stature of these treaties, when our oral histories and narratives (our forms of library and knowledge, and our written tools outside of Western systems of knowledge) state otherwise.

So, we are now being forced to fit within the nation-state box, of how the international system understands it. Through that lens, it automatically subsumes us within the state as being oppressed and dominated peoples. Because we have been colonized, oppressed, and things like the doctrine of discovery have been supplanted on us to delegitimize our laws, legal orders, and very complex, sophisticated governance structures, which—since they are not akin to a Westphalian government system—suddenly become “illegitimate” or unrecognized. This is why scholars like Glen Coulthard talk about the politics of recognition, how because we are not recognized in the eyes of the State, we become lesser than what is identified in these elements constituting statehood in the eyes of the international community.

So, then, we consistently have to go to places like the UN, or articulate our stories, struggles, and experiences with the Canadian state to say we are sovereign, independent nations. That we do have very complex, sophisticated societies and governments that are connected and directly tied to the land. That ceremonies, songs, and oral traditions are our ways of expressing who we are and what governance and legal order looks like. But because they’re not understandable within the idea of Westphalian statehood, it becomes reduced to the Other—we become part of this racialized othering internationally. We have to consistently justify, articulate, and advocate for who we are at an international level to say, we are also nations, just like other nation-states. It may look a little different, but that’s the settler-superiority lens that reduces us to constantly having to advocate for these positions.

II. The International Structure of Complicity

FELICE: I can definitely see parallels to Prof. Xavier’s point, particularly in terms of how racialization, or a colonial racial system, was implemented by the colonial powers here in Indonesia, and how it persisted to our contemporary social organization. For the next topic, perhaps we can delve deeper into this coloniality innate to the modern nation-state project (how, as Prof. Xavier also mentioned, the nation-state becomes a technology to ensnare indigenous and colonized communities into the new colonial international order).

This question initially came from studies we found regarding certain postcolonial states created and partitioned by their “former” colonizers, as in the case of many African and Caribbean states—arguably, this is also applicable in the context of Indonesia—where the demarcation of these nation-states end up dividing indigenous lands or communities, and in that way invisibilizes their unique identities and cultures, as they are now divided or lumped under a nation-based identity.

This is also somewhat adjacent to James C. Scott’s anthropological work (although with very much due criticisms), but there is a long history of indigenous and colonized societies that were cognizant of this insidious danger of the nation-state project, and thus deliberately resisted or divested from the nation-state project when it began to take root in their regions; for instance, by retreating into other rural upland areas that were then considered to be the areas of the “barbarians”. So, there is also that dimension: how not all colonized peoples who seek self-determination or liberation, envision said liberation in the form of a nation-state.

So, we’d like to get both of your inputs on this phenomenon, as in the way nation-states flatten and subsume (like Prof. Makokis mentioned) the various forms of traditional social organizations by indigenous and colonized peoples. Particularly, how does international law respond or contribute to this marginalization engendered by such borders? Perhaps also in regards to what I talked about previously—do you think international law requires and necessitates indigenous/non-Western societies to conform to the Western nation-state model, and to keep repronouncing themselves and reimagining themselves through the lens of the colonial international order? And what is to be done about it?

Prof. MAKOKIS: Yeah, I’ll start with that one, because it brings me to reflecting and thinking about how indigenous peoples have had to utilize the international community, specifically the UN system and bodies, to advocate for our rights when they were not being heard, respected, or honored domestically within Canada. Our people started to go to the UN in the 1970s, with the sole purpose of trying to carve out or make a space there for us to be heard. However, it took about 40 years to be able to get to this place, where we can now register with the Human Rights Commission meetings as nations. And we’re still not considered nations in the same right as the nation-states that exist within those meetings; we’re at the level of organizations. We are not given the same amount of time as nation-states are given time to respond to issues of the (non-) implementation of human rights mechanisms.

So, we still have to insert ourselves into these spaces, and sometimes I have to ask myself if the time that we spend there is worth it, or should we rather put our time and effort into revitalizing, rebuilding, reclaiming our original laws and governance structures at home to recover and rebuild from the genocide that we experienced on Turtle Island. It is an internal struggle and conundrum for me, when I participate in meetings. But, I guess I come from a place of wanting others to know what our struggle is, that we still exist, and Canada continues to colonize us through various forms of federal and provincial laws that they consistently pass that violate international mechanisms.

That’s sort of where I’m at with the use of international law and these UN mechanisms. And we have a long way to go. To take 40 years to get into the building, with the status as an organization? It indicates the amount of work we still have to do. Do I think that we will ever get to a place as co-equals of nation-states? I don’t think so, because the existing nation-states currently benefit from our ongoing oppression internally, and continue to subsume us through various laws and policies which are created to keep us oppressed internally. I know it sounds depressing, but this is where I think we can benefit together in understanding each other’s struggles. This is where I think building alliances, internationally, becomes more productive and stronger.

Prof. XAVIER: I was thinking about this, around the limitations imposed by the state-centric international law system. So, building off of Prof. Makokis’ wise words, there are two things that I think are important here.

Perhaps shifting to a more meta/theoretical space, I’d bring in a theorist I’ve worked with, Ambalavaner Sivanandan; he was a Tamil refugee from Sri Lanka who came to the UK in 1958, and he passed away in 2018. He was part of the Institute for Race and Class, and he wrote several influential texts. One of the things I’ve learned from him and reading his work is that we need to think about the broader structure to understand how our struggles are related. So, Prof. Makokis’ struggle, my struggles, and your struggle in Indonesia, are all part of a larger political structure that was deployed as a way to extract resources and dispossess people. And you need tools to facilitate this extraction and dispossession, the capitalist structure is a way to engage in that project—it requires us to extract and to dispossess.

What Sivanandan shows us is that this larger structure is almost akin to a conveyor belt; you have these established, First World nation-states, then you have developing nation-states, and then Third World nation-states. You are then unable to move out of that structure, because it is maintained by the financial infrastructures, the criminal infrastructures, etc. Everything is tied together, as part of what Marxist scholars would call a historical materialist account of law. The moment we understand that, then it becomes really, really clear that the larger structure, the white supremacists pushing for extraction and dispossession, require us to stay in our place. And by going to the international bodies, what we’re asking is for the structure to recognize us.

So, if I was to pick up on what Prof. Makokis was saying, her community is not a nation-state, so it’s treated like an organization. This comes back to Glen Coulthard, regarding what does the politics of recognition require? It requires the Canadian settler-state to recognize all of the various indigenous communities. But then, what the courts say is, “yes, we recognize you, but you’re also the same as the Black people that are the descendants of enslaved peoples,” or the Black newcomers, or refugees like me—we’re all put at the same level. And you can see that in the international context as well, because when my people go to the UN, they face a similar challenge, where they are told, “well, your state, Sri Lanka, doesn’t recognize you. You’re a minority community within Sri Lanka, and you want to disrupt that entity.” You don’t have the right to speak; you can only speak through Sri Lanka.

In the past (i.e. pre-October 7th), the illusions we had about international law allowed us to say this; that it is “okay to have different sets of politics”, to believe that the constitution is an emancipatory document—I don’t think that’s the case any longer, when we’re currently witnessing a livestreamed genocide. But let me stop myself here.

FELICE: Thank you. That is personally new to me—the explanation by Prof. Makokis, on the relegation of indigenous communities as “organizations”. I think it clearly shows that as much as these international organizations (such as the UN) try to appear accommodating, it clearly is still holding onto that foundational system that requires othering, as you’ve mentioned.

The second part of this interview, alongside its recording, is out and can be read here.

This interview was conducted by the editors of Juris Gentium Law Review: Felicia Andryanti (黃), Giasinta “Velin” Desvella, Marecinta Wardhanu, and Bagus Alfandy.