II. Legal orientalism and international law

Scholarship on the role of international law in colonialism was a topic left underexplored until relatively recently (Merry, Reference Merry1991).Footnote ⁶ This omission has since been corrected with the evolution of post-colonial and cultural studies and by historians, specifically legal historians of empire and colonial/settler societies and early modern political thought (Anghie, Reference Anghie2007; Barcham, Reference Barcham, Duncan, Paul and Will2000). In light of the growth of literature on the subject, paralleled by efforts to decolonise knowledge and to destabilise dominant legal paradigms and legal assumptions (Darian-Smith, Reference Darian-Smith2013), international law is no longer immune from its privileged position in the international order. Hence, it is necessary to recast international law in a European colonial light. It is widely agreed that law and colonialism have acted in concert since the sixteenth century when the West set its sails eastwards to pursue its colonial and imperialist ambitions. Summing up law's role in the colonial enterprise, Chanock (Reference Chanock1985, p. 4) observes how law has been ‘the cutting edge of colonialism’. Owing to the perception of colonial supremacy, law was conceptualised as ‘the gift we gave them’, already hinting at the ‘us’ and ‘them’ in the colonial imagination that would later become enshrined in law (Fitzpatrick, Reference Fitzpatrick1989). S. James Anaya (Reference Anaya2009, p. 49), legal scholar and former Special Rapporteur on the Rights of Indigenous Peoples, emphasises the significance of legal discourse and the decision-making processes, which ‘developed historically to support the forces of colonisation and empire that have trampled the capacity of indigenous peoples to determine their own course under conditions of equality’. Preoccupied with the origins of international law, Anghie observes how international law began after the Spanish encountered the Indians and the issues that ensued as a result of this initial contact (Anghie, Reference Anghie2007). Elsewhere, Anghie (Reference Anghie1999, p. 1) remarks that ‘international law was principally a consequence of imperial expansion’. Unsurprisingly, international law as a distinct body of law, first known as the law of nations,Footnote ⁷ is not immune from responsibility in the colonial rationale and processes.

If we agree that colonialism and international law have been closely entwined, we can proceed to situate legal orientalism within this matrix. If orientalism created the ‘Other’, then legal orientalism constructed the legal ‘Other’. The fundamental question for understanding legal orientalism is: who has law and who gets to decide who has law? (Ruskola, Reference Ruskola2013). Arguably, the converse question is equally valid: who doesn't have law and who doesn't get to decide who has law? It is important to remember from the outset that orientalism, which is subject to change in each context, serves to demarcate between those who fit into the Western-civilised fold and those who do not. It does this by drawing labels, binaries and biases, and imposing hierarchies and boundaries. To illustrate this point, the historical labelling of indigenous peoples as the ‘Other’ (Said, Reference Said2003), as shown by the stereotypes of Western thought over the centuries, served the colonialists for conquering lands and peoples. Hence, the term ‘indigenous’, and other variations of the word such as ‘noble’, ‘ignoble’, ‘savages’ and ‘barbarians’ (Pagden, Reference Pagden and Griffin1992; Venne, Reference Venne1998; Anaya, Reference Anaya2004), has been viewed as a linguistic measure to ‘mark the boundaries of a space and a time for the West to inhabit’ (Tennant, Reference Tennant1994, p. 6). Consequently, European colonisers and colonialists employed such terminology in order to keep the colonised in a specific space, separate from the dominating powers not only physically, but also discursively and legally. Similarly, legal orientalism is preoccupied with creating legal categories and concepts in order to define law's insiders, who can be characterised by their Western, modern, civilised and enlightened qualities, against those who are situated outside law. Darian-Smith (Reference Darian-Smith2013, p. 49) adds that Europeans ‘had law and were lawfully minded’ in contrast to non-Europeans, who were considered lawless and without legal acumen. Darian-Smith (Reference Darian-Smith2013, p. 48) further argues that law can be seen as ‘an important material means by which the West constructed the East, providing an ideological and conceptual frame through which Euro-American orientalist discourses about the Other's inferiority became manifest’. International law, according to Kennedy (Reference Kennedy1997, p. 748), amounts to ‘a distinction between the West and the rest of the world, and the role of that distinction in the generation of doctrines, institutions and state practices’. In short, colonialism and hegemony have relied on international law for their creation, implementation and legitimation, making legal orientalism a significant instrument in the toolkit of these projects. An important take-away from these general remarks is that international law has been instrumental in shaping the legal ‘Other’ and some argue that it can cause ‘the denial of recognition’ (Tourme-Jouannet, Reference Tourme-Jouannet2013, p. 668).

III. Overcoming legal orientalism and international law

Without minimising or de-stigmatising its colonial legacy or current hegemony, international law has another side, which is considered benevolent. Arguably, international law's goodwill helps detract attention from its colonial and orientalist origins but, in my judgment, it points to the inherent paradoxical nature of international law, which will be unpacked in the last section. Exposing both its gentle and brutal features, Thornberry (Reference Thornberry2002, p. 428) highlights how the interface between the colonised and the colonisers has ended up situating indigenous peoples ‘in the drama of international law’, according to which ‘there was always recognition of sorts, even if not as completely equal to the colonizing powers’. It was within this asymmetrical recognition that legal pluralism emerged with separate legal systems and adjudicating processes. In colonial situations, it was often the case that laws and legal institutions were transferred from one society to another and, once done, a dual legal system emerged: one legal system for the colonisers and one for the colonised (Hooker, Reference Hooker1975). Merry (Reference Merry1991) points out that such transfer and duality of legal systems caused irreversible change to the indigenous culture, mindset and consciousness.

Against the backdrop of separate and unequal legal systems, Merry (Reference Merry1991) observes how law has also created sites for contestation, where the colonised and oppressed have used law to destabilise, resist and mobilise. Although an unequal contest owing to the power imbalance between the two groups, the legal ‘Other’ was able to challenge and resist the coloniser in the courtrooms where he made claims and filed complaints (Merry, Reference Merry1991). Somewhat similarly, contemporary international law creates spaces for opposition, transgression and contestation, where new constructions of legal meaning, subjectivities and recognition are formulated in de-territorialised sites that are detached from orientalist or Eurocentric epistemologies. As well as reshaping legal culture and affecting a global imaginary inclusive of the legal ‘Other’, international law's jurisgenerative qualities help generate new concepts and categories in international settings that are appropriated and translated in domestic and local settings by a range of actors, including non-state actors (Merry, Reference Merry2006).

It is important to stress that such developments in international law have unfolded slowly.Footnote ⁸ Prior to this, state delegations representing their governments drafted legal instruments on behalf of indigenous peoples.Footnote ⁹ This can be traced to the centrality of the nation state in international law, which was considered the only legitimate body with the capacity to make and enact international legislation (Aponte Miranda, Reference Aponte Miranda2010).Footnote ¹⁰ This has since changed.Footnote ¹¹ The indigenous peoples’ movement that commenced in 1960s brought about global activism and saw indigenous peoples’ participation at the UN, the growth of indigenous transnational networks, and local and global programmatic activity. Indigenous peoples are now involved in constructing legal subjectivities, norm-building and standard-setting (Aponte Miranda, Reference Aponte Miranda2010). Through a bottom-up approach that simultaneously draws on and challenges the traditional top-down approach in legislating international law, indigenous peoples have ‘employed a multi-layered approach to international human rights lawmaking that included participation in both informal mechanisms of knowledge production and norm-production as well as more formal decision-making structures’ (Aponte Miranda, Reference Aponte Miranda2010, p. 213).Footnote ¹² An example of this law-making revolution is the drafting of the UN Declaration on the Rights of Indigenous People (the ‘Declaration’ or the ‘UNDRIP’), which began in the early 1980s and reached a highpoint in 2007, with the adoption of the Declaration by the UN General Assembly. Because of the participation of indigenous peoples in the drafting process, the declaration can be set apart from previous multilateral treaties governing indigenous peoples. Nevertheless, the negotiating process was a challenge; for instance, the declaration is without an official definition, suggesting the 1986 UN working definition of indigenous peoples is satisfactory. From a state perspective, the absence of a formal definition is problematic. Indigenous peoples take a different view and argue that it is for the group to self-identify as indigenous. Because the declaration is without a definition, this adds to the conceptual and definitional controversy surrounding the question of who is indigenous in international law.Footnote ¹³

Despite these challenges and controversies, the emergence of international law guaranteeing the rights of indigenous peoples and imposing duties on states attests to the significance of indigenous peoples in international legal order. It can also be viewed as part of the effort to overcome legal orientalism. In short, collectives who were subjugated to colonialism and orientalism, often with international law as an aid, are now empowered to use and mobilise the rights of indigenous peoples in international law as a legal tool and strategy. In many respects, this development can be viewed as part of the global agenda put forward by Darian-Smith (Reference Darian-Smith2013, p. 51) ‘to dilute the negative stereotypes that undermine international law and are preventing sincere global dialogue and creative legal collaboration’.

IV. Overcoming legal orientalism, international law and the Bedouin in Israel

Having grasped the main tenets of legal orientalism in international law and ways to overcome it, this section reverts to the everyday practice of international law in context. Here, we learn about a concrete case to overcome orientalism, including legal orientalism, through the rights of indigenous peoples in international law. Given the paradoxical nature of international law, which has simultaneously created and dismantled legal orientalism, this begs the question as to why groups, like the Bedouin in the Negev desert in southern Israel, have turned to international law in the first place. This move is even more curious in the case of the Bedouin when we take into account that they were historically situated beyond the formal legal frameworks of the Ottoman Empire (1519–1917) and British Mandate (1917–47), and governed themselves according to Bedouin codes and traditions. The events of 1948 marked a turning point in the Bedouin way of life, when the Israeli state apparatus sought to bring the Bedouin collective under a Western-crafted legal order (Nyhan, Reference Nyhan2016). Following Israel's establishment and during early nation-state building, Middle East anthropologists and historians, who often had a military background, studied Bedouin as nomadic, desert dwellers (Marx, Reference Marx1967). Orientalist historiography viewed the Bedouin as a collective remaining largely unaffected by changes in the outside world, not unlike Europe's noble savage or biblical shepherds (Ratcliffe et al., Reference Ratcliffe, Nasasra, Abu-Rabia-Queder, Richter-Devroe, Nasasra, Richter-Devroe, Abu-Rabia-Queder and Ratcliffe2014). In short, the Bedouin were considered to live in a ‘world without time’, which produced an orientalist gaze that froze them in a static time and space (Goering, Reference Goering1997). This body of literature tended to downplay the political and ideological forces at work and curtailed the agency of the Bedouin. In addition to this, the government's modernisation plan to urbanise and sedentarise the Bedouin in the 1960s ‘manifested in a binary contrast between “progressive modernity” and a “traditional backward culture”; the binary Otherness of orientalism was rearticulated through a dichotomy of traditional versus modern and Bedouin versus Israeli society’ (Ratcliffe et al., Reference Ratcliffe, Nasasra, Abu-Rabia-Queder, Richter-Devroe, Nasasra, Richter-Devroe, Abu-Rabia-Queder and Ratcliffe2014, pp. 9–10). However, recent years have seen the incremental politicisation and polarisation of Bedouin-related issues, especially concerning land ownership. Scholars have begun to critically interrogate the tension in Israeli/Bedouin relations, emphasising the territorial and spatial features of the fractured relationship (Yiftachel, Reference Yiftachel2006) and countering the orientalist representations of the Bedouin in the literature (Amara et al., Reference Amara, Abu-Saad and Yiftachel2013; Ratcliffe et al., Reference Ratcliffe, Nasasra, Abu-Rabia-Queder, Richter-Devroe, Nasasra, Richter-Devroe, Abu-Rabia-Queder and Ratcliffe2014).

In practice, the new millennium has witnessed an attempt to locate the Bedouin within an internationally crafted legality that has entailed a redefinition of their legal status and rights. Crucial to this reinvention, or redefinition, are the concept and category of indigenous peoples in international law. Since the mid-2000s, the Bedouin in concert with civil society have recognised the international leverage of this internationally created status and rights. While the Bedouin have been recognised as an indigenous people in international settings, primarily at the UN,Footnote ¹⁴ this recognition in no way reflects a general consensus on the question of their indigenous status (Nyhan, Reference Nyhan2016). Domestic definitions define the Bedouin as anything other than indigenous (Maddrell, Reference Maddrell1990; Shamir, Reference Shamir1996). Moreover, the application of the UNDRIP to the Bedouin was recently ruled out by the Israeli judiciary, which denied the Bedouin claimants indigenous recognition of their lands.Footnote ¹⁵

Arguably, by choosing an indigenous peoples’ status and rights formulated in international law, this amounts to a very bold, and arguably risky, move. On one hand, it enables the Bedouin to rethink and redefine themselves and enables them to access international arenas and audiences; on the other, it shifts their legal status and rights from the domestic law setting. However, such redefinition, or process of becoming indigenous (Clifford, Reference Clifford2013), is not unproblematic. By appropriating the indigenous peoples’ rights in international law, the Bedouin encounter the ‘grammar of rights’, which are described as ‘the formal and informal mechanisms constructed and maintained by the colonial power to accord or withhold rights’ (Shalhoub-Kevorkian, Reference Shalhoub-Kevorkian2012, p. 106). This ‘grammar of rights’ is not limited to the domestic setting. In the international setting, Shalhoub-Kevorkian (Reference Shalhoub-Kevorkian2012) further argues that the ‘grammar of rights’ is created under the auspices of democracy, equality, neutrality and rule of law, which is then converted into bureaucracy, formalism and legalism. Tying into the grammar of rights, the ‘paradox of rights’ is also at play. Cowan et al. (Reference Cowan, Dembour and Wilson2001, p. 11) demonstrate the extent to which ‘not only national but also international legal regimes, including the rights regime, dictate the contours and content of claims and even identities’ and point to the ‘intriguing … dialectic between the discourses and practices – one might say, the culture – of human rights and those of the groups that appeal to them’. Commenting on the complexities, Cowan et al. (Reference Cowan, Dembour and Wilson2001, p. 11) note ‘the ways in which rights discourse can be both enabling and constraining’ represents a paradox – ‘a paradox of rights’. Within this general enabling and constraining mechanism of international human rights law, the Bedouin seek indigenous recognition and rights.

To conclude, the case-study reveals that the Bedouin experience the grammar and paradox of rights when taking up an internationally created status and rights. And yet this enables the Bedouin to avail of international pathways and align themselves with the international human rights movement. The grammar and paradox of rights highlight what is at stake when a group adopts and utilises an international framework that is inherently incoherent, contradictory and unstable, and whose origins are hard to detach from its colonialist origins. Hence, international human rights law can be characterised by its limitations, tensions and frictions, while also generating new possibilities, subjectivities and discourses, and political dynamics that challenge and offer alternatives to Eurocentric assemblages of power, law-making and knowledge production. The rights of indigenous peoples in international law are no different. Having created a self-reflective moment in international law, Darian-Smith emboldens us

Hence, Darian-Smith has advertently created momentum to pursue a global socio-legal agenda that moves us away from the Western boundaries and binaries and decentres our legal and analytical concepts and categories, which have been anchored in Western legal traditions. If we are to overcome legal orientalism, Darian-Smith's (Reference Darian-Smith2015) call for ‘collective ambition for rebellion and transgression’ radically widens the context for our legal imagination that allows counter-hegemonic moments and alternative ways of doing things, as illustrated by the Bedouin in the Negev and their turn to international law for recognition.