The 'natural' law of nations: society and the exclusion of First Nations as subjects of international law

Abstract

‘Society’ has been identified as a foundational concept in the development of international law, defining both state sovereignty and membership of the family of nations.¹ Antony Anghie, for example, argues that society was a central concept shaping the emergent Eurocentric international legal order as it shifted from its foundations in natural law based on transcendental and universal values towards a scientific, positivist framework.² The Eurocentric construct of society, and the way it shaped the fundamental elements of (public) international law, had serious consequences for First Nations. As Anghie argues, nineteenth-century positivist international law devised a number of strategies to exclude non-Europeans from the emerging international legal order: first, by creating a distinction between so-called civilised and uncivilised peoples; and, second, by only admitting peoples who met European standards of civilisation as members of ‘international society’, and thereby linking international legal status to a ‘cultural distinction’.³ So, for Anghie, sovereignty and international law were constituted through colonialism, in ways that excluded non-European peoples as subjects of international law.⁴ This characterisation does not, however, fully explain the significance of society, nor how it shaped sovereignty and sovereign power.