The two more important developments in Twentieth Century international law were the decolonization [FN1] movement of the 1950s and 1960s and the recognition of the emerging norm of indigenous peoples rights in international law. [FN2] More remarkable, however, there has been the creation of discourses in international law that have constrained these two developments in a way that has prevented the unleashing of their full emancipatory potential. I argue in this article that the discourse that has been deployed to "manage" the creation, development and ultimate resolution of the problems posed by both decolonization and the indigenous peoples problematique is the modernization discourse. [FN3]
The modernization discourse has been instrumental in the Third World [FN4] in creating subjects -- the nation-state as a "national allegory" [FN5] and *298 the indigenous peoples as a "development problem" -- that have both shaped and constrained these developments in international law. Understanding the Third World in a historically deterministic model permits particular representations of the Third World, and particular interventions by international law and international organizations to redress its backwardness. [FN6] At the same time, the representation of indigenous peoples as a "development problem" also creates representations of them that permit interventions by national law and the nation-state. [FN7] The creation of a discourse allows for a particularistic articulation of knowledge and power, the process through which social reality comes into being. Arturo Escobar, for example, explains how the "invention" of the development discourse created space for the systematic creation of concepts, theories and practices. [FN8] This in turn shapes what knowledge is "produced, recorded, stabilized, modified, and put into circulation" [FN9] -- in sum what interventions to make, and how to justify them.
This article seeks to explain this double creation and the role that the modernization discourse has played in both the decolonization movement and the emergence of the norm of indigenous peoples in the Third World. I argue that the constraining effect of the interface between decolonization and modernization has been to create a double bind for the *299 Third World state and the indigenous peoples within them. The international legal discourse, through a development discourse that hosts several other historically deterministic discourses on progress, historiography and rationality, creates a genre of a Third World state that aspires for modernization. Yet it is prevented from this objective by the very interventions that the discourse permits. The indigenous peoples within the Third World state faced by a similar bind. They are encouraged to "modernize" by acquiring the "right" values. [FN10] Yet they are prevented from doing so by the creating discourse that seeks to intervene in their lands and cultures so as to control the natural resources under their control.
I have divided this article into two parts. Part A is further divided into six sections. The main objective of part A is to show how the decolonization-modernization interface occurred, and how modernization played a significant role in it.
In the first section of part A, I very briefly try to identify the linkages between colonialism, the concept of indigenous peoples as we know it today and the role of international law in both.
In the second section of part A, I focus on the two methods that international law has used to simultaneously enable a particularist international legal discourse and at the same time imbue this discourse with a seemingly universalist democratic and "developmentalist" content. I show in this part how a reconstruction of history enables the discourse to purge itself of its "evil" parentage and thereby hygienize its history and camouflage it with a neutral framework and structure. This façade of neutrality is maintained by a conflation of ideological and rhetorical maneuvers that disable an alternative viewpoint. I also argue that the modernization program has been particularly useful in maintaining the legal categories that have been instrumental in this process.
In the third section of part A, I show how effective these two modes of dealing with the "colonial other" through the modernization program have been in Post-Colonial Africa. While I specifically write in the special context of indigenous rights, this part hopefully will give insight as to how the decolonization moment became mixed up with the "modernization" process. In the clever decolonization-modernization conflation, both the departing Colonial state and the successor independent state shared a legitimate international law concern: development. This section is a precursor to sections four, five and six of part A, which serve the purpose of framing the issue in the general context of Africa focusing on how the *300 indigenous peoples in Africa found themselves in a situation where they are "wards of the State" [FN11]. I explain here how, even after the departure of the European colonialists, the indigenous peoples still lack political power at the national or even regional levels.
Part B of the article is a concrete case study of the Maasai people of Southern Kenya. It illustrates the discussion in part A through the particular example of how the Maasai people have been systematically disempowered through the interventions permitted by the modernization discourse. Contrary to popular belief, I show that the dispossession of their lands was not due to structural internal weaknesses in their traditions and their valuation of material resources or even their "stupidity" as is often made out. Rather, the instrumentality of the law as a device aimed at modernist development played a significant role in their disempowerment.
I. RUPTURE AND PROGRESS IN THE CONTEXT OF THE AFRICAN DECOLONIZATION MOVEMENT
It has been suggested that one of the greatest innovations of international law in the Twentieth Century was the emergence of institutions to address issues of global governance and dispute resolution. [FN12] One way to understand the emergence of institutions, Thomas Franck remarks, is as law's way of deferring the admission of its own vacuity. Institutions are the "black box" of jurisprudence: [FN13] the resilient vessel that can absorb the hypocritical flak of self-serving states hence deferring political tensions by technocratic means.
David Kennedy has observed that international legal discourse also plays an almost similar role in defining and demarcating the events of the field of international law. [FN14] He has shown how the highpoints of different theoretical and conceptual moments in international law could and usually are read as both continuity (and progress) and rupture (from the former *301 order) at the same time. Persistently, and systematically, through alternate resort to both the progress narrative (to stabilize and maintain the integrity of the discourse, and its utopian ideals) and pragmatic renewal/reform (and malleability), international law has managed to construct its history by locking out otherwise contradictory ironies. [FN15] Ultimately, the effect created is one of an inevitable unidirectional movement. Depending on the specific discourse, this movement (of progress) may be toward multilateral governance (as preferred to formal sovereignty), liberal, free trade (as opposed to autarky), universal human rights norms (as opposed to outmoded cultural relativism) or modernization and development (as opposed to underdevelopment).
I start here by rethinking the common renderings of colonialism and decolonization and the mode of democracy and governance that this ushered into Africa in terms of the progress narrative in international law. The definitive teleological discourse that was applied to Africa in the decolonization era represented both a clean break and a moment of continuity. This way, the international legal resolution to the colonial problem both provided support for political decolonization and the assurance of conceptual continuity to the foundations of the discipline that would have been thrown into disarray by the momentous happenings heralded by the fact of decolonization. The teleological discourse written on the fabric of international law served both the purpose of silencing the contradictions presented by this moment and also to shape subsequent political discourse by giving it both a chronological and a territorial hue. At the same time the discourse would imbue membership to the club -- by ascribing hitherto denied sovereignty [FN16] -- as well as adjudicate on the contemporaneity or otherwise of the new states using the modernization paradigm. [FN17] To this extent, one can look at decolonization, as David Kennedy looks at the fall of communism in Eastern Europe and the "eastward extension of Western economic and legal regimes in Europe", as both rupture and progress, break and continuity. [FN18]
*302 In a sense, the decolonization movement in the fifties and sixties represented a moment of progress in international law. The sanctity of the conceptual integrity of sovereignty and self-determination, sempiternally an idea "preserved intact, [in international law] awaiting satisfactory conditions for implementation" [FN19] had now found fulfillment in the hitherto "dark continent". The conditions for decolonization signaled the coming to fruition of ideals always preserved in the international law fabric: self-determination.
At the same time, there was need to acknowledge, to accommodate and to manage the new states emerging from the decolonization process. In other words, there were "pragmatic imperatives" that necessitated a rupture of international legal discourse or order to assure the discipline of a needed responsiveness to comprehend the situation. To put it differently, international law was yet again being called upon to both remedy its past failings by constructing its own narrative and then project its future aspirations based on this construction. This way, the discipline preserved "both its unity and its ability to act as the axis of differentiation between cultural constructs and social forces". [FN20] Both the chronological and territorial differentiation is achieved by a unitary compulsion that drives cover over difference and insists upon the homogeneity of all experience. [FN21] The former colonies needed to move from time (T1) where they were thought to be, to time (T2) where the advanced countries in the North were through the process of modernization. [FN22] The programmatic schedule is to bring the outside into the inside -- by assigning sovereignty -- and then bringing it up-to-date -- by the modernization process that involves a seemingly contradictory negotiation/curtailing of the just assigned sovereignty.
This double vision characterized the emergence of the Third World state in general, and the African state in particular. In this way international law facilitated, indeed obligated, the emergence of a particular brand of nation-state in Africa strikingly modeled on the *303 Western State in its formal appearance. Professor Okafor has put it thus:
"The international legal ideal of the European-style nation-state has encouraged both colonial powers and contemporary African states to homogenize their social-culturally fragmented populations. Largely coercive attempts by leaders of African states to form cohesive, culturally unitary nations out of their distinct, diverse component polities have contributed significantly to the political dynamics currently at play on the African continent." [FN23] This kind of state espoused a particular kind of "vision" that it borrowed from the international discourse and sought to transform or complete the transformation of traditional African societies to fit this model and vision. Yet both these attempts at "conversion", one by the international "system" to subsume the emerging African state into its discourse and satellite and the other by the African State to subsume the indigenous peoples into the national "mainstream" are characterized by deep-seated tensions that remain unresolved. These tensions are obscured by a rhetoric of homogenization, modernization, evolution and development.
On the one hand, the international system evolves in a partisan way that freezes a "western" rationality into the international legal discourse even as it presents itself as a developing system that increasingly represents most of the world population. [FN24] The international legal discourse achieves this in two ways. First, it adopts a historical narrative of progress that reconstructs the history of the discourse. This, in turn, enables the discourse to adopt a dominant historical narrative that excludes competing patterns that may contradict the dominant narrative. Second, such a stance enables the international legal discourse to give short shrift to colonialism [FN25] and other *304 incursions by Western societies on non-Western ones. It also constructs the discourse as evolving and progressing - and it does this without purging itself of this historical bias but precisely by entrenching it. [FN26]
In this way, the discourse of international law imbibes and becomes the language of expressing the western rationality. To the extent that this is the rationality that operates as the "domain of truth", "normalcy" is defined by reference to the particular visions of its cultures. [FN27] Thus the non-Western cultures emerge as the "other" in the discourse. Even while the normative structures and framework of the discourse strives fastidiously to give the appearance of neutrality, the deeper structural and procedural contours of the discourse run counter to the surface proclamations of the normative framework of international law. In this way, the initial process of "homogenization" -- that of incorporation of the emerging Non-Western States into the "family of nations" -- ends up being a process of "differentiation". [FN28] At the national scene, on the other hand, the concept of "internal" sovereignty would be employed by the new states to "incorporate and assimilate" those whom the classical colonizers had "forgotten" to *305 "modernize". [FN29] The same argument, style and rhetoric are used to justify incorporation and assimilation of the communities that remained deeply indigenous even after the colonial encounter. Here, the African State becomes the "center" and seeks to integrate the "other" -- those who still remained indigenous. Strikingly, a similar lexicon and polemics borrowed from international law are in use. In the process, indigenous people in Africa have been subjected to most inhuman treatment, their lands expropriated by the successor state and genocidal and ethnocidal practices unleashed on them.
Despite these most visibly heinous and systematic violations of human rights on distinct segments of the population, their plight has remained outside the international law discourse. Indeed there appears to be evidence of at least complicit superintendence of international institutions of these acts now famously called "integration" and "development projects" or better still, "modernization" [FN30]. At the same time what has been thought to be "political" repression by governments, such as refusal to hold "democratic elections", has met serious and vehement demurrages by the international community obsequiously ready to unleash terror and other international means of enforcement against "repressive" governments.
That this latter class of violations is not prioritized by international law framework is a trend indicative of the differentiation between the "center" and the "periphery". To the extent that there is an understanding, a common language, a cord between the "international center" and the "national center" [FN31], these violations support rather than challenge the *306 hegemonic need of the "international center". The manipulation of the international formulae for decolonization to exclude indigenous peoples from the principles setting out the obligations of those governments to decolonize their territories provides a striking example.
II. COLONIALISM, MODERNIZATION, INDIGENOUS PEOPLES AND INTERNATIONAL LAW: THE
Recent literature on indigenous peoples rights in international law bristles with references about the "progress" that has been made in the past decade [FN32]. However, the discipline of international law may read the progress in dealing with the problem of indigenous peoples in two ways. One way is to see the "growing awareness" of the indigenous peoples issue as evidence of the beneficial evolution of international law and to hail the progress made in this area. In this narrative, indigenous peoples have been making remarkable progress in their struggles to have their rights addressed. However, since the issues concerned are only a "recent phenomenon", international law would address their plight as witnessed by the recent explosion of legal literature in international legal discourse.
Indeed, reading the literature on indigenous peoples rights within the mainstream academy, the persistent theme is that in the last two decades the issue of indigenous peoples rights has thrust itself forcefully into the international agenda and has remained there for some time. The frequent assertion is that international law has progressed so satisfactorily that now it is apropos to tackle the problem posed by the indigenous peoples. Hence Joy Asiema and Francis Situma write:
"Although indigenous peoples have existed for a long time, it was not until 1953 that the United Nations became interested in their welfare. In that year, the International Labor Organization (ILO) launched a study of the persistent violations of their human rights. As a result, in 1957 the ILO General Conference adopted the Convention Concerning the Protection and Integration of *307 Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries ... whose main objective was protection and integration of indigenous peoples into dominant culture of the state ..." [FN33] The epic story of the progress in international law is that the regime of international law emerging after World War II was one that was informed by the "truism" that "states had to ... become increasingly interdependent." They thus had to struggle to contend with complexities resulting from "technological change ... [making] cooperative approaches ... compelling" [FN34]. One of the "contemporary" developments of international legal regimes is cited as the creation of processes in which non-state actors can use to secure recognition of their interests. Hence non-state actors and non-self governing peoples have increasingly been admitted as actors in the international legal discourse and have thereby contributed to the development and implementation of "cooperative strategies to tackle systematically issues not previously thought to require international cooperation". [FN35] One of these issues is the subject of indigenous peoples rights:
"In recent years, issues surrounding the continuing subjection of indigenous peoples have been added to this agenda. Indigenous peoples' organizations have been extremely effective in their efforts to secure recognition by the international legal system of the rights which arise from their specific historical and contemporary experiences." [FN36]
It is usual to proffer evidence of the "growing awareness" of the indigenous peoples issue as evidence of the beneficial evolution of international law. The progress is truly remarkable: After ILO Convention 107 was criticized for being "integrationist" or "assimilationist" in the 1970's, the earlier view that indigenous peoples were to be integrated or assimilated was rejected. The UN took over the mantle of leadership in this area. In May 1971 the Economic and Social Council (ECOSOC) authorized the Sub-Commission on Prevention of Discrimination and Protection of Minorities to make a study of the problem of discrimination against *308 indigenous populations and to suggest measures for eliminating such discrimination. [FN37] Initial work done by the Sub-commission led to a resolution by ECOSOC establishing a Working Group on Indigenous Populations (WGIP) to review developments pertaining to the human rights of indigenous populations and to give attention to the evolution of standards concerning the rights of such populations. [FN38] At the end of its eleventh session in 1993, the Working Group agreed upon a Draft Declaration of the Rights of Indigenous Peoples. [FN39] The Draft Declaration has been hailed as one that "covers every conceivable problem related to indigenous peoples' rights". [FN40]
This then is the story of indigenous peoples as is told by international law today. It is a story in which the indigenous peoples have continually been making remarkable progress in their struggles for justice. However, since the issue they raise is only "a recent phenomenon", it follows that no resolute vindication has yet been found. However, international legal discourse is clearly addressing their plight as witnessed by this success story.
The above story on the progress being made at the international level on indigenous peoples rights is true and epic. There is an alternative way to render this story, however. This is to regard the so-called "progress" as one way international law seeks to deny its "colonial" history and origins. [FN41] In this rendering, the "progress" in the area of indigenous peoples rights may well be one of the systematic ways that international law dismantles the external indicators of its putrescent history while internally strengthening the processes that predispose its survival and entrenchment. [FN42] One way that international legal discourse managed to preserve its unity and coherence without back-tracking when faced with the decolonization moment in Africa, was, for example, through enabling other processes that would legally contain the previous process of colonization. The process elected was one of "modernization" through "economic development". Once *309 the link was made between decolonization, modernization and economic development in the teleological scripting of history, it became possible to comprehend colonization within the international legal system without raising hard questions that would throw into disarray some central tenets of international law.
In other words, there is some truth being masked by the success story. It is also true that the issue of indigenous peoples rights has remained unresolved for over five centuries since Francisco de Vitoria juggled with the jurisprudential problems posed by the Spanish occupation of Native American lands. Indeed, it is well and ably documented that that the present regime of international law owes its origin to colonialism, i.e., the process of colonizing indigenous peoples' lands. [FN43]
Colonization involved establishing settler societies in indigenous ancestral territories. To facilitate this process without war and justify it, doctrines of international law were developed. Early international law publicists outdid themselves in spawning theories, to explain the legality of the invasion. Vitoria, now considered the "father" of the defenders of indigenous peoples rights himself believed that since indigenous peoples were wanting in intelligence, the Spanish could, indeed, had a duty to administer their lands. [FN44]
Other theorists such as Vattel [FN45] and Locke [FN46] believed that sovereignty could be asserted if the lands were vacant. Whether the lands were in use or not was given a eurocentric interpretation: mixing one's labor with the soil (referring to European practices of cultivating the lands as opposed to hunting, gathering and pastoralism practiced by the indigenous peoples.)
These sundry doctrines were synthesized to rationalize the incorporation of indigenous peoples into "states" and their subjection to legislative history. From the very outset, international law encountered the