World-making

13

Certain (mis)conceptions

Certain (mis)conceptions: Westphalian origins, portraiture and wampum

Jeffery C Hewitt'

Miinstei1'. Further, drawing upon wampum diplomacy, which is also both law as story and visual imagery, I then investigate a reading of certain Indigenous contributions to European international laws[1] founding narratives. How in one instance does placing ter Borch’s painting in an art gallery reaffirm the Westphalian model’s legitimacy, while simultaneously placing wampum in a museum, render Indigenous laws as a cultural artefact? Does expanding the legal imagination that both generates and upholds stories and visual imagery also offer a means toward more complex and comprehensive origins stories of European international law?

With limited exceptions, European international law relies heavily on written text, which is a visual medium, and on other visuals, such as portraiture, as well as other cultural objects, to maintain its founding narrative. Writing (or typing) law is a physical act that produces a visual result. Curve a line without connecting the circle on the right side and one has the letter *c’, close the loop and it is an ‘o’. Each letter holds its own sound(s) and meaning(s). Draw three different shapes using curves and lines, for example, and arrange them in a particular order, ‘c’ followed by an ‘a’ and ‘t’ and the visual becomes ‘cat’. Translating the visual into meaning a feline mammal, is the result of acquired literacy. Write ‘cat’ in another language, such as Greek, and it becomes Taxa’. While visually beautiful, the Greek version of‘cat’ holds no meaning for my English-trained eyes. But does that deem it meaningless? It simply illustrates that 1 am illiterate in Greek and thereby untrained to derive abstract meaning from the visual text, as I can in English. Text as a visual medium is learnt. Translating text into meaning requires literacy, which is also an acquired skill.

Some Indigenous sources of law, such as wampum, are also visual text and require the requisite literacy to ‘read’ them. Like the written treaties of Westphalia, wampum is international law. Wampum is created through the use of slim, tubular beads from clam shells for white beads, with quahog clam shells supplying white and purple (sometimes referred to as black) beads which are then strung together on hemp string or sinew.111 It was used in political and ceremonial matters, as well as to record international treaties. Rather than being widely

engaged with as international law, however, wampum are often placed in museums and viewed as material objects of Indigenous cultures.[2] In sum, wampum as an Indigenous source of law is presented in institutions, such as the British Museum, as ‘cultural’ artefact, which works to erase the law contained within. Conversely, a short walk from the British Museums collection of wampum to London’s National Gallery, ter Borch’s painting displays European international law’s origin story as a visual reinforcement of European supremacy. Ter Borch’s portrait is both a commemorative statement of a key historical moment in European international law and an invitation to viewers to uphold a European-based legal narrative. Meanwhile, wampum in museums reaffirms to visitors a powerful colonial authority over a ‘once-was’ Indigenous culture. And yet this classification of wampum does not erase Indigenous laws. One must be able to read the language in which the law is written to fully engage with its meaning. Failure to derive legal meaning from wampum is not a failing of Indigenous legal orders; it is demonstrative of illiteracy, however widespread.

Westphalia

Though not without critique, European international law’s origin story is said to begin in 1648 with the Peace of Westphalia. But origin stories about modern law and legal systems are often underpinned by a common characteristic — there is always more to it.2 That Westphalia is widely considered the birth of European international law is the result of a myopic lens curved toward a particular power structure and away from a broader reading. One need only give a cursory glance at ter Borch’s ‘Treaty of Münster’ to appreciate whom the genesis of European international law is for. Affluent, European, Christian, men. Ter Borch’s painting offers visual authority for the Westphalian story. Placing the painting in the National Gallery in London, UK, serves to sustain the ongoing narrative of European international law. It allows for a wider audience to engage with the Westphalian origin story than those who might ever view the original treaties known collectively as the Peace of Westphalia. It also reinforces a reading of European international law that is devoid of women, as well as being both racialised and devoid of Indigenous peoples.

Ter Borch’s central, hovering placement of the golden statue of the Virgin Mary holding her infant son, surrounded by rays of golden sunlight corning from the chandelier hanging over the signing table, reinforces the blessing of Westphalia by divine authority. The main subjects, namely men, appear in their silken finery, conveying the wealth, class and socio-political stature of the participants. The men holding the paper — presumably their written oath — with two extended fingers, signifies the solemnity of their undertaking. Though, strangely all of the mouths of the men are closed as if, like the heavenly luminescence shining down on them, their silent, corporeal presence is enough to generate law. The central placement of a signatory table, sealing wax, ribbon, paper and a bound, gold-leaf book underwrite the premise that law must be written to be deemed law.

A modern positioning of European international law as a liberating force directs attention away from European international law’s replication of a narrow form of masculine power that seeks to tame the savage.[3] This framing elevates laws written on paper, such as the treaties of Westphalia, and seeks to eliminate Indigenous laws (such as wampum), by also eliminating Indigenous peoples — in particular Indigenous women and girls." The casting of Indigenous peoples outside of European international law as the savage is similarly echoed in visuals, such as portraiture.

This is an ongoing narrative, not an historic one. While the UK’s National Gallery holds ter Borch’s 1648 commemoration of the rise of the sovereign-state, in 2013 the National Portrait Gallery hosted an exhibition titled ‘George Catlin: American Indian Portraits’. Placing Catlin’s work inside the same institutional body that hosts ter Borch’s ‘Treaty of Münster’ furthers Euro-centric authority over the lawless North American savage, which European international law seeks to tame.

Catlin is a white, American painter whose portraiture of Indigenous peoples in nineteenthcentury America plays on tropes of how Indigenous peoples are widely understood to be, with titles such as ‘Scalp Dance, Mouth of the Teton River, Teton Dakota’. Most of the Indigenous subjects of Catlin’s work displayed in the exhibit are Indigenous men. This upholds the white, male gaze upon the noble savage-warrior narrative in sharp contrast to the affluence, civility

and respectability of European, Christian men. It is an American painter, Catlin, whose work seeks to define Indigenous peoples (notably as savage), and a Dutch painter, ter Borch, who envisions Westphalia as the capstone in civility. Both artists are engaged in supporting the same Euro-centric narrative through portraiture. These visuals situate Indigenous peoples, along with the exclusion of Indigenous women, as merely objects on display, not as living cultures capable of inventing international law. That Catlin’s works were on display in 2013 underscores the modern context in which visuals and narratives combine to uphold the ongoing efforts to tame the savages who must, until civilised, remain outside Western-defined spaces,2' including European international law. The rights of Indigenous peoples directly threaten the origins of European international law and its founding construction on the sovereign-state. As such, European international law has a ‘stake in maintaining these boundaries: between male and female, inside and outside, law and violence, civilization and savagery’.[4]

There remains an ongoing marginalisation of scholarly interventions drawing on race, gender and Indigeneity, deftly deferring long overdue substantive changes to the underpinning structure of European international law. Third World Approaches to International Law (TWAIL) arose in part to respond to such a narrow reading of European international law.23 Though TWAIL, along with feminist critiques of European international law, may be on the rise, such perspectives too often continue to be categorised as outside. Further, displaying Indigenous sources of laws, such as wampum, in well-lit museums as artefacts of a once-was culture contemporaneously with Catlin’s portraiture of Indigenous men and ter Borch’s commemoration of Westphalia, privileges European international law’s narrative as a liberating force and also shapes the ways in which such visuals should be understood.2

Ter Borch’s painting centring the affluent, Christian, European male as authoritative, and Catlin’s depiction of lawlessness among Indigenous peoples, contributes to the upholding of

European international law’s origin story and the lawless savage narrative by use of visuals. Further, classifying Indigenous laws, such as wampum, as artefact while reading out race and gender and Indigeneity, shapes what is and is not international law. The constant retelling of this origin story, both as narrative in scholarship and as visual per ter Borch, privileges European international law as universal, genderless and atemporal. While European international law may be founded by elite Christian European men, TWAIL, feminist scholars and Indigenous academics work to remind us that international law is not universal, genderless or atemporal.

But the combined power of narrative and the visual is also a potent coupling that upholds the premise of universality,5" in spite of there being little about European international laws origins that is universal. Rather, because of the varying encounters between the Crowns of Europe in their colonial expansions and Indigenous peoples globally, there is ultimately a ‘factish quality of the universality of the nation state [that] is . . . settled only from within a particular juridical frame’.51

Positionality and international law

For me, engaging with law and legal-institutional structures takes time. 1 am constantly employed in the translation work of understanding what I am reading (as all learners are). As I engage with Western knowledge systems — particularly law — 1 work to process my readings and research into a Cree context then back again.52 In other words, it often takes me twice as long as most to absorb legal systems that are not my own. My introduction to European international law’s perceptions of its global contributions were brought to the forefront in 2014, through an ‘objects of international law’ workshop held at Queen Mary University, London, resulting in International Law’s Objects.[5] Prior to this, my main engagement with European international law was through Indigenous international law practices of building relations versus hierarchically ordering them, as European international law seems to want to do. My overall sense of European international law was framed by Indigenous peoples accessing international venues and tribunals, such as the Haudenosaunne confederacy’s appeal to the League of Nations/ or the legal advocacy of James Anaya and others at the Inter-American Court of Human Rights.’

At the London workshop in 2014, not for the first time, I struggled internally with trying to understand how international law, as understood in Europe, seemed so confident and self-assured. It astounded me that on one hand European international law accepts only sovereign states and their successors as possessed of authority to enter into treaties, while engaging Indigenous peoples in treaty-making — while again, in the Canadian context at least, simultaneously refusing to uphold those treaties. 1 was further confounded by the profound erasure of Indigenous peoples’ influences in the founding of international law. It was puzzling that European international law viewed Westphalia as a profound story marking a transition from medieval

to modem Europe and as the moment sovereign states entered both our legal structures and lexicon. Meanwhile, Westphalia’s creation of sovereign states ushered in a new wave of colonial expansion and violence against Indigenous peoples in North America and globally,5' using claims of sovereign authority as justification.58 Capitalising on the doctrine ot discovery,59 such claims of sovereignty have in turn been adopted by successor states, such as Canada,[6] as a means to continue its membership in European international law’s club. Yet, Indigenous nations in Canada have also been recognised as nations, which have never surrendered sovereignty. Still, European international law has systematically excluded Indigenous nations and favoured the doctrine of discovery over existing treaties between European sovereigns and Indigenous peoples.

There have also been less successful efforts to apply the 1961 Vienna Convention on the Law of Treaties to pre-existing treaties between Indigenous peoples and European Crowns. These moves of erasure of Indigenous nationhood were criticised in the First Progress Report of the United Nations Special Rapporteur, Miguel Alfonso Martinez, appointed by the SubCommission on Prevention of Discrimination and the Protection of Minorities, Commission on Human Rights and the Economic and Social Council, who stated that both Indigenous and non-Indigenous peoples ‘mutually bestowed upon each other (in either an explicit or implicit manner) the condition of sovereign entities’,8 and in some instances did so by way of wampum.

Consistent with the origin story of Westphalia, treaty-making in European international law requires parties to be sovereign nations and thereby authoritative for the purposes of entering into treaties. Inexplicably, as evidenced by the Crown’s assertion of sovereignty in Canada, European international law simultaneously appears to uphold the premise that such treaty-making authority on the part of Indigenous leaders was temporary (like a day-pass to a circus), and expired upon placing their signatures on treaty documents. This ‘temporary treaty sovereignty’ has no legal foundation in European international law, yet was replicated by European Crowns

as they expanded their colonial empires. But in the Canadian context there is a twist, which is explored further later in this chapter, in the form of wampum and the Royal Proclamation, 1763, which from the English Crown’s perspective recognises Indigenous peoples as nations.

Thus I found myself in London — the heart of empire — and thinking that, when it comes to Indigenous peoples, European international law has some explaining to do.

The Westphalian origin story began with an organisation of European powers.4' Women and racialised groups were not included. Indigenous peoples were also excluded. Moreover, if the Westphalian story is to be accepted on the face of it, Indigenous peoples were also believed to be uncivilised and without law — international or otherwise.[7] But many Indigenous nations did and do have rich legal orders that includes international law, both before and after 1648. As examples, Haudenosaunne, Anishinabek and Wendat nations, along with others, engaged in wampum diplomacy — a recording of agreements between nations in wampum belts.’0 Cree, Chippewas, Metis and Assiniboine (Nakoda or Stoney) nations created an Iron Alliance among their distinct nations.’ The Mi’kmaw Nation also actively engaged in international-law making through alliances with various nations.’ And they did so both pre- and post-Westphalia, as European Crowns interacted with Indigenous international law-making practices. Regardless, European international law continues to ignore and fails to include Indigenous contributions to its origin story. This is particularly troublesome when, by matter of timing, the Dutch — one of the vital players in the negotiations of the Peace of Westphalia’ — had been engaging in international law with the Haudenosaunne confederacy since at least 1613.

Wampum diplomacy and international law

As memorialised in ter Borch’s painting, Westphalia was an unprecedented achievement of diplomacy.’ Hosted by the Holy Roman Empire, various warring powers of Europe gathered to resolve longstanding battles for lands, borders, resources and power.” The result of such an auspicious gathering was three treaties that, among other things, established the concept of sovereign states as a new political order based on peaceful coexistence. This principle

of sovereignty, which continues to be fundamental to European international law,’7 created a model of peace through diplomacy and was premised on the non-interference in the domestic affairs of another sovereign.’8

Perhaps in part because of the Westphalian treaties settling various European border disputes previously in contention,’9 a number of Crowns increased their outward appetite for the acquisition of new lands and resources. As a result, the seventeenth and eighteenth centuries brought another wave of colonial expansion as the sovereigns of Europe transported their continental disputes with each other to North America.[8] Subsequently, the sovereignty principle of Westphalia severely impacted Indigenous peoples worldwide and continues to do so today. It seems, the ‘boundaries of international law were drawn between European states as the Family of Nations on the one hand, and barbarian nations and savage entities, on the other’. But there is another contribution to the founding story of European international law pre-dating Westphalia by approximately 45 years.

In 1613, the Dutch settlement in what is now the state of New York in the United States of America was a site of international law and an assertion of sovereignty. The Haudenosaunne Confederacy presented the Dutch settlers with a wampum belt, commonly known as the Two-Row wampum belt or the Guswentha/Kaswentha. The Two-Row wampum established that the Confederacy and the Dutch would co-exist peacefully, without interfering with each other and respect one another as nations.

Wampum belts have long been a subject of scholarly consideration.’ In ‘Wampum as Hypertext’, Angela Hass states, ‘[djating back one thousand years, wampum and other material components . . . have been used by Woodlands Indians for ceremony and as records of important civil affairs.’ The use of wampum originates from ‘the coastal [east] Indians . . . but through trade with other tribes, it traveled to the interior and western regions of the continent’.

The spread of wampum across an expansive geographic area larger than the size of continental Europe often meant wampum recorded agreements between more than one Indigenous nation. In this way, and as with the treaties forming the Peace of Westphalia, wampum agreements are international law expressed in a different textual form and visual medium. Whether written in ink on paper or quahog shells strung on sinew, such elements are the medium, not the legal meaning. Meaning is derived from literacy with the forms laws are expressed. The premise that international law was generated in Europe in 1648, centuries after it had been practiced among various Indigenous nations in what is now North America and with whom various European powers, such as the Dutch, Spanish, French and English, had long been engaging, is an extraordinarily narrow reading of international law and at best parochial.

The Dutch were active players in the making of the Peace of Westphalia.[9] They were also a party to the Kaswentha (Two-Row wampum) with the Haudenosauune Confederacy 35 years prior. The Dutch both understood and were engaging with the founding principles ‘of kaswentha [which] emphasizes the distinct identity of the two peoples and a mutual engagement to coexist in peace without interference in the affairs of the other’. Interestingly, these same principles underpin the sovereignty model of Westphalia — Europe’s great contribution to international law — without any attribution to the Haudenosaunne Confederacy. Ter Borch’s memorial painting also fails to include any Indigenous representative, not even so much as a wampum bead on the signing table.

Together, narrative and visual conspire to erase Indigenous peoples and their international laws while simultaneously drawing upon such Indigenous inventions and proclaiming them as European. Afterall, Indigenous peoples, such as the men of Catlin’s ‘Scalp Dance’, could not possibly be as capable of rational thought as the elite Christian, European men in ter Borch’s ‘Treaty of Münster’. At least that is what the repeated narrative and visuals want us to believe.

The narrative of European international law presses onward without recognition of Indigenous contributions from the outset. To uphold the Westphalian genesis of European international law, the power of narrative and visual are carefully distributed into special networks separating law and artefact.7" European international law benefits from continuously harnessing this power as seen in Westphalia’s origin story, museums’ wampum collections as well as the National Portrait Gallery’s Catlin exhibit and ter Borch’s portraiture, as stark examples. As such, modern international law operates in a deficit. It seeks to render Indigenous international law mute as a silenced, un-read artefact best suited to museum curation rather than acknowledge that European international law’s conception of the sovereign-state was at least influenced by the Haudenosauune Confederacy with the Dutch in 1613. This practice of denial also flourishes in Canada in relation to treaties.

Treaties, praxis and international law

Treaties in international law are performative in that they are at once narrative and visual.[10] Such documents stand as de facto evidence that European Crowns recognised ownership of lands by Indigenous nations and that such lands were not terra Hullins’ nor were Indigenous nations without authority to engage in treaties:

In countless reiterations . . . treaty literature affirms the sovereign capacity of Indian tribes to engage in bilateral government relations, to exercise power and control over their lands and resources, and to maintain their internal forms of self-government free from outside interference.

The elements in the preceding mirror those of the treaties at Westphalia, according to which Crowns were free to engage with each other in diplomatic relations, were given authority and control over their own lands, and were given rights so that their own laws and governance structures would be unmolested by others.

Following the Seven Years War, the English Crown actively engaged in wampum diplomacy as international law in what is now Canada. Upon dividing up Indigenous lands with the French, without any lawful right to do so, the English returned to Canada with the Koval Proclamation, 1763.’ The Proclamation recognises Indigenous ‘Nations as Tribes’ and the holders of title over any lands not already sold to the Crown, and forms part of Canada’s Constitution Act, 1982." It is specifically referenced in the Charter of Kights and Freedoms, in a provision that holds that nothing in the Charter can ‘abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including: (a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763.’ This includes nationhood found in the Proclamation.

In 1764, a year after the Royal Proclamation was issued, there was a gathering at Niagara where the Crown presented wampum to Indigenous leaders. It is important to recognise that this particular wampum was commissioned and presented by the English Crown to Indigenous leaders. This praxis of Indigenous international law by the English Crown is not, as George Snyderman notes in this paper’s opening quote, a ‘[fjailure of the White man to understand and accept Indian customs and philosophy from earliest contact [which] has led to the acceptance of

certain misconceptions’. It is re-inventionist to suggest as much and I wonder if Snyderman — while perhaps trying to appear empathetic to the ‘Indians’ — contributes to an ongoing effort to revise colonial history by recasting extraordinary violence and racism[11] as mere misunderstanding.

Like the Two-Row wampum treaty at Niagara is also international law, though this time between Indigenous nations and the English Crown, versus only Indigenous nations. It serves as clear evidence that the Crown not only understood but actively engaged in international law-making utilising an Indigenous form, post-Westphalia. Similar to the conditions at Westphalia some 116 years prior, when the English Crown engaged with other nations which did not share a common legal system, those present were able to generate something new, which resulted in the Peace of Westphalia. By 1764, the Crown had been engaging with international law for over a century and understood such law may well take a form that is not solely derived from English common law; that international law called for new forms of law-making. In this instance the Crown provided wampum with an accompanying speech setting out its legal commitments woven into the treaty at Niagara. This wampum also stands as evidence that the Crown recognised, understood and acknowledged that Indigenous nations were engaged with international law in a different way from the Crown’s European-based practices.

Moreover, the 1764 Niagara wampum was an effort to provide symmetry to a relationship that comprised the Royal Proclamation, 1763, utilising an Indigenous form. Together the Proclamation and wampum form a text and visual narrative of a different sort than an international legal treaty written exclusively in English. But merely because it comes in a different form, does that mean wampum is not law? The actions of the English Crown to commission a wampum treaty and set out its legal obligations and relational commitments were presumably committed in good faith. The Royal Proclamation, 1763 has never been overturned nor found invalid by a Canadian or international court, nor has wampum at Niagara, 1764 — though the former has constitutionally protected status and the latter does not. As such, these legal obligations at international law continue forward to present day without either being voided. None of the subsequent written treaties that followed 1764 displaced the Crown’s obligations created by wampum at Niagara, though it is treaties, along with European international law’s narrative, that exclude Indigenous peoples. As much as European international law has enabled imperial expansion over Indigenous nations, is there room for reconsidering European international law’s history? If so, how might such (re) consideration be achieved?

Imagination, positivism and visuals of law

Human imagination is powerful. It shapes the world we live in and the one we aspire to. Imagination builds and sustains societies and social order/4 It is both individual and collective.

Indeed, ‘the sociological imagination enables us to grasp history and biography and the relations between the two within society. ... It is by means of sociological imagination that men now hope to grasp what is going on in the world, and to understand what is happening to themselves.’8’ Human imagination has a number of analytical modes to engage with, including the metaphor.[12] Metaphor furthers the imaginary’s construction of structure and institutions within society. Metaphor is engaged with and is central to reason.'

Legal positivism is based on reason and has been defined as law that is human made, versus natural, which is sourced in written rules that are negotiated, written and agreed upon by sovereign states. The invention and movement from natural law to legal positivism demonstrates that human imagination is capable of moving a society from one form of understanding to another. Wampum is a human made, written set of rules negotiated and agreed upon by the relevant parties, including sovereign states, such as with wampum at Niagara. Indeed, it has been entered into by numerous Indigenous nations as well as by, for example, the Dutch and the English. Wampum is a form of legal positivism. It was relevant to the English Crown who understood wampum was law or they would not have known to engage with it in 1764. In other words, in spite of subsequently placing wampum in museums as cultural objects, in the eighteenth century the English Crown was well aware that wampum is international law. The English were also literate enough in wampum diplomacy to know how to use it.

Legal positivism also offered sovereign states a means of authority to engage in treaty-making, resulting in the production of a document recorded on paper, or in tubular beads made of clam shell. Yet, the European states viewed their own sovereignty as ‘beyond history and inquiry’, which allowed them to solely determine what is and is not international law, who is and is not welcome.911 The sovereignty of Indigenous nations required a feat of legal imagination of ‘the international jurist to define and manage the primitive’, while simultaneously deploying ‘a positivist methodology' to examine these treaties [that] had the paradoxical effect of erasing the non-European side of the treaty even when claiming to identify and give effect to the intentions of that party’. Legal positivism requires a recalibration of the necessity for Crowns to uphold their treaty obligations with Indigenous nations.

Both the Two-lkow wampum and wampum at Niagara, along with a rich and extensive assemblage of other wampum, are recorded law that rely on imagery and metaphor versus text written in English (or Dutch, Latin, etc). Following the thread that metaphor is an element of reason and imagination, both the Two-Row and Niagara wampums are reasoned agreements between European Crowns and Indigenous nations. Like the Royal Proclamation, 1763,

wampum at Niagara arises of out an era of legal positivism in international law — and necessitates a realignment of current views and contributions of Indigenous laws. The classification of wampum with Indigenous nations as something other than legal positivism presents a conundrum for European international law.

Some conclusions

Returning to Peter Fitzpatricks observation in relation to origin stories, that there is always more to it — I hope to have drawn upon a sliver of the ‘more’ through a consideration of portraiture and wampum. Westphalia as origin story has some explaining to do in relation to Indigenous contributions and the ongoing framing of Indigenous peoples as savages to be tamed, whose laws are outside European international laws’ orderly reliance on legal positivism.

At Westphalia, the Crowns, each with a different legal order, executed an agreement in written text and ink that set out their obligations toward each other. Yet, like the text and visuals of wampum, the treaties of Westphalia were written in Latin, a language that was neither solely English, French, Dutch or Spanish, but that of their host the Holy Roman Empire. Like wampums, the treaties of Westphalia amounted to a new form of law-making seen as a benefit to the signatories.

One-hundred and fifteen years after Westphalia, the English Crown commissioned and presented a wampum belt to Indigenous leaders in Niagara, in 1764. Wampum belts were not an English form of law-making but neither was Westphalia specifically English. The Crown had over a century of experience, in practising European international law; it understood well the value of engaging in international law in a broader context, and that it accepted law taking on forms beyond the common law.

European international law continues to uphold the subjecthood of successor states by recognising treaties entered into by various heads of state, with Indigenous nations. In doing so, in some circumstances it utilises Indigenous forms of law-making, while denying the sovereignty of those same Indigenous nations. In the Canadian context, the Crown recognises Indigenous nations as sovereign nations, who hold title to lands and have capacity to enter into treaties through the Royal Proclamation, 1763, which is constitutionally enshrined. Yet simultaneously, both Canada and current international law deny the sovereignty of the Indigenous nations who entered into those treaties. Continuing on a trajectory of failing to recognise Indigenous sources of laws and Indigenous nations who also form part of the genesis of European international law’s record pre-Westphalia, is not sustainable.

Similarly, the practice of placing wampum in museums and using portraiture by the likes of Catlin to uphold the savage, lawless narrative of Indigenous cultures, serves to normalise a fiction from which European international law continues to benefit. This, too, must be reimagined within a larger historical and modern context. Westphalian civility, underscored by ter Borsch’s ‘Treaty of Münster,’ should be considered in the context of the power of visuals to uphold a male, Christian, European narrative. It should be reimagined within a context that is not as universal, genderless and atemporal as the Westphalian origin story would like us to believe. Drawing a more comprehensive narrative of European international law’s origin story from our legal imagination can and should be narrated through written text and law’s visuals. Otherwise, there is an ongoing risk of ‘failure of the White man to understand and [uphold the] . . . acceptance of certain misconceptions’.’3 It does not have to be this way.

93 See n 2.

  • [1] To digitally view The Ratification of the Treaty of Munster (1648) by Gerard ter Borch online at The National Gallery, London, United Kingdom, see “The Ratification of the Treaty of Munster,” The National Gallery, accessed March 19, 2010, www.nationalgallery.org.uk/paintings/gerard-ter-borch-the-ratification-of-the-treaty-of-munster. For a discussion on this painting as a depiction of international law as extraordinary and commemorative versus local and ongoing see Luis Eslava, Local Space, Global Life (Cambridge: Cambridge University Press, 2015), 31-35. 2 In keeping with this papers proposal that ‘international law’ is not always accepted as universal, I use the term 'European international law’ to reference the system of international law currently researched and practiced globally to reflect that while such international law may be wide in scope, it is fundamentally derived from Europe. At times, I do not include ‘European’ in reference to ‘international law* to convey a broader framing of‘international law* that is not solely European-based (or does not have to be). 1 also on occasion reference ‘Indigenous international law’ within the context of Indigenous nations in what is now known as North America. In sum, I try throughout to be as specific as I can when referencing ‘international law*. 3 For more on written text as image and the visual element of law, see for example Desmond Manderson, Law and the Visual: Representations, Technologies, Critique (Toronto: University of Toronto Press, 2018). For a discussion of visuals and legal theory' see Neal Feigenson, “The Visual in Law: Some Problems for Legal Theory,” Law, Culture and the Humanities 10, no. 1 (2014): 13—23. 4 For an excellent discussion of international law and the Haudenosaunee Confederacy, including wampum belts, see Beverley Jacobs, “International Law/The Great Law of Peace” (Master’s diss., University of Saskatchewan, 2000), www.collectionscanada.gc.ca/obj/s4/f2/dsk3/SSU/TC-SSU-07042007083651 .pdf. 5 Charles H. Gillette, “Wampum Beads and Belts,” Indian Historian 3, no. 4 (Fall 1970): 33. 6 Kathryn V. Muller, “The Two ‘Mystery'* Belts of Grand River: A Biography of the Two Row Wampum and the Friendship Belt,” American Indian Quarterly 31, no. 1 (Winter 2007): 129—64.
  • [2] The British Museums collection of wampum is available for viewing in its digital catalogue. For an example see British Museum, “Wampum / Belt / Bead,” Collection Online, accessed March 19, 2020, https://research. britishmuseum.org/research/collection_online/collection_object_details/collection_image_gallery.aspx?assetid =308190001 &objectid=526662&partid=l. 2 The Westphalian origins are subject to critique by various international law scholars including: Richard Joyce, “Westphalia: Event, Memory, Myth,” in Events: Tito Force of International Law, eds. Fleur Johns, Richard Joyce and Sundhya Pahuja (Abingdon: Routledge, 2011); Benno Teschke, The Myth of 1648: Class, Geopolitics, and the Making of Modern International Relations (London: Verso, 2003); Stephane Beaulac, “The Westphalian Model in Defining International Law: Challenging the Myth,” Australian Journal of Legal History 8, no. 2 (2004): 181; A. Claire Cutler, “Critical Reflections on the Westphalian Assumptions of International Law and Organization: A Crisis of Legitimacy,” Review of International Studies 27, no. 2 (2001): 133-50. 3 Steven Patton, “The Peace of Westphalia and It Affects on International Relations, Diplomacy and Foreign Policy,” The Histories 10, no. 1 (2019): 95. 4 Peter Fitzpatrick, Modernism and the Grounds of Law (Cambridge: Cambridge University Press, 2001): Ch 1. 5 Andreas Osiander, “Sovereignty; International Relations, and the Westphalian Myth,” International Organization 55, no. 2 (2001): 251-87. 6 See ter Borch, The Ratification of the Treaty of Munster. 7 Herbert Arthur Smith, ed., Great Britain and the Law of Nations: Territory (Part 1), vol. 2 (London: PS King & Son, 1935); Lassa Oppenheim, International Law: A Treatise, ed. A. D McNair, 4th ed. (London: Longmans, 1928), 12.
  • [3] Ruth Buchanan and Rebecca Johnson, “The Unforgiven Sources of International Law: Nation-building, Violence, and Gender in the West(ern),” in International Law: Modern Feminist Approaches, eds. Doris Buss and Ambreena Manji (Oxford: Hart, 2005), 239-83. 2 For an excellent discussion on the many ways in which Indigenous peoples, cultures, languages, laws and people themselves are actively erased see: Eve Tuck and K. Wayne Yang, “Decolonization Is Not a Metaphor,” Decolonization: Indigeneity, Education & Society 1, no. 1 (2012): 1—40. Such actions of colonial violence particularly impact Indigenous women and girls. See for example Josephine L. Savarese, “Challenging Colonial Norms and Attending to Presencing in Stories of Missing and Murdered Indigenous Women,” Canadian Journal of Women and the Law 29, no. 1 (2017): 157-81; Emily Snyder, Vai Napoleon and John Borrows, “Gender and Violence: Drawing on Indigenous Legal Resources,” University of British Columbia Law Review 48, no. 2 (2015): 593; Amnesty International, No More Stolen Sisters: The Need for a Comprehensive Response to Discrimination and Violence Against Indigenous Women in Canada (London: Amnesty International Publications, 2009), www.amnesty.ca/sites/default/ files/amr200122009en.pdf; The Final Report, National Inquiry into Missing and Murdered Indigenous Women and Girls (Canada), Reclaiming Power and Place: The Final Report of the National Inquiry Into Missing and Murdered Indigenous Women and Girls (Privy Council Office, 2019). 3 For the National Portrait Gallery link, see “George Catlin: American Indian Portraits,” National Portrait Gallery, accessed March 19, 2020, www.npg.org.uk/whatson/george-catlin-american-indian-portraits/exhibition.php. 4 This painting by Catlin is part of the permanent collection of the Smithsonian American Art Museum and was part of the loan to the National Portrait Gallery of the United Kingdom for “George Catlin: American Indian Portraits” exhibit. For example, see “Scalp Dance, Mouth of the Teton River,” Smithsonian American Art Museum, accessed March 19, 2020, https://americanart.si.edu/artwork/scalp-dance-mouth-teton-river-4347.
  • [4] For more on Vine Deloria Jr., see Vine Deloria Jr., “If You Think About It You’ll See That It Is True,’’in Spirit & Reason: The Vine Deloria, Jr., Reader, eds. Barbara Deloria, Kristen Foehner and Sam Scinta (Golden, CO: Fulcrum Publishing, 2006), 40. 2 Buchanan and Johnson, “The ‘Unforgiven’ Sources of International Law: Nation-Building,” 240. 3 For more see as examples Usha Natarajan, John Reynolds, Amar Bhatia and Sujith Xavier, “Introduction: TWAIL - On Praxis and the Intellectual,” Third World Quarterly 37, no. 11 (2016): 1946; Luis Eslava and Sundhya Pahuja, “Between Resistance and Reform: TWAIL and the Universality of International Law,” Trade, Law and Development 3, no. 1 (2011); Obiora Okafor, “Newness, Imperialism, and International Legal Reform in Our Time: A TWAIL Perspective,” Osgoodc Hall Law Journal 43, no. 1-2 (2005): 43; A. Anghie and B. S. Chimni, “Third World Approaches to International Law and Individual Responsibility in Internal Conflicts,” Chinese Journal of International Law 2, no. 1 (2003): 77-103. 4 See for example Karen Knop, “Re/Statements: Feminism and State Sovereignty in International Law,” Transnational and Contemporary Problems 3 (1993): 293. 5 For a good feminist critique of international law see for example Anne Orford, “Feminism, Imperialism and the Mission of International Law,” Nordic Journal of International Law 71, no. 2 (2002): 275-96; Hilary’ Charlesworth and Christine Chinkin, The Boundaries of International Law: A Feminist Analysis (Manchester: Manchester University Press, 2000). 6 Svetlana Alpers, “The Museum as a Way of Seeing,” in Exhibiting Cultures: The Poetics and Politics of Museum Display, eds. Ivan Karp and Steven D. Lavine (Washington: Smithsonian Institution Press, 1991), 25-32. 7 Derek Croxton, Westphalia: The Last Christian Peace (New York: Palgrave Macmillan, 2013) offers insight into some of the participants in the Westphalian negotiations as allies of the then French Cardinal Richelieu but not necessarily recognised sovereigns at the time. This is illustrative of a prioritisation of considerable Christian influence over the negotiations to the exclusion of others (in particular, non-Christians). Meanwhile, modern international law asserts universality as a strength versus its steeping in Christianity’. Further, while failing to include racialised and Indigenous peoples in the founding of international law, Christianity was simultaneously seeking to convert racialised and Indigenous peoples to the faith.
  • [5] Antony Anghie, “Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law,” Harvard International Law Journal 40, no. 1 (Winter 1999): 1-80. 2 Sundhya Pahuja, “Laws of Encounter: A Jurisdictional Account of International Law,” London Review of International Law 1, no. 1 (2013): 63. 3 For an exceptionally insightful explanation of this process, see Tracey Lindberg, “Critical Indigenous Legal Theory Part 1: The Dialogue Within,” Canadian Journal of IVoinen and the Law 27, no. 2 (2015): 224-47. 4 Ruth Buchanan and Jeffery G. Hewitt, “Treaty Canoe,” in International Law's Objects, eds. Jessie Hohmann and Daniel Joyce (Oxford: Oxford University Press, 2018), 491. 5 Jacobs, “International Law/The Great Law of Peace,” 114-21. 6 S. James Anaya and Claudio Grossman, “The Case of Awas Tingni v. Nicaragua: A Step in the International Law of Indigenous Peoples,” Arizona Journal International and Comparative Law 19, no. 1 (Spring 2002): 1. 7 For more insight into these internal struggles, see Lindberg, “Critical Indigenous Legal Theory.”
  • [6] S. Janies Anaya, Indigenous Peoples in International Law, 2nd ed. (New York: Oxford University Press, 2004), 16. 2 Ibid., 18. 3 The doctrine of discovery is intricately connected to international law, though deeper considerations of the doctrine in relation to international law are considerations for a future paper. For good critical perspectives on doctrine of discovery, see Robert J. Miller, Jacinta Ruru, Larissa Behrendt and Tracey Lindberg, Discovering Indigenous Lands: The Doctrine of Discovery in the English Colonies (Oxford: Oxford University Press, 2010); Robert J. Miller. “The Doctrine of Discovery in American Indian Law,” Idaho Lain Review 42, no. 1 (2005): 1. 4 See for example, R. v. Sparrow [1990] 1 S.C.R. 1075 wherein the Supreme Court of Canada establishes a constitutional test for Indigenous claimants to prove the existence of an ‘aboriginal or treaty’ right. This legal test assumes Crown sovereignty over Indigenous peoples, lands and resources and accepts the authority of Crown to extinguish and justifiably infringe the rights of Indigenous peoples. 5 Royal Proclamation No. 1 (October 7, 1763) is derived from Clarence S. Brigham, ed., British Royal Proclamations Relating to America, Vol. 12, Transactions and Collections of the American Antiquarian Society (Worcester, MA: American Antiquarian Society, 1911), 212. 6 For a critical analysis of Indigenous sovereignty, surrender and the Canadian state, see Arthur Manuel and Grand Chief Ronald M. Derrickson, Unsettling Canada: A National Wake-up Call (Toronto: Between the Lines, 2015). 7 Island of Palmas Case (Netherlands v. United States) (1928) 2 UNRIAA 829. See also Johnson v. M’lntosh, 21 U.S. (8 Wheat.) 543 (1823). 8 Jacobs, “International Law/The Great Law of Peace,” 132, citing Miguel Alfonso Martinez, Study on Treaties, Agreements and Other Constructive Arrangements Between States and Indigenous Populations: First Progress Report, UN Doc. E/CN.4/Sub.2/1992/32, August 25, 1992, para 186. 9 Jacobs, “International Law/The Great Law of Peace,” 132, citing James (Sakej) Youngblood Henderson, “The Status of Indian Treaties in International Law,” in International Law in Aboriginal Rights and International Law (Proceedings of the 1993 Conference of the Canadian Council on International Law, Ottawa, 1993), 126. 10 John Borrows, “Frozen Rights in Canada: Constitutional Interpretation and the Trickster,” American Indian Law Review 22, no. 1 (1997): 37-64.
  • [7] Konrad Repgen, “Negotiating the Peace of Westphalia: A Survey with an Examination of the Major Problems,” in 1648— War and Peace in Europe, Vol 1, Politics, Religion, Law and Society, eds. Klaus Bussmann and Heinz Schilling (Minister: Westfälisches Landesmuseum,1998), 355-72. 2 James Anaya, Indigenous Peoples in International Law, Ch 1. 3 John Borrows, Justice Within: Indigenous Legal Traditions, Discussion Paper (Ottawa: Law Commission of Canada, 2006). 4 Muller, “The Two ‘Mystery’ Belts of Grand River.” 5 Robert Alexander Innes, Elder Brother and the Law of the People: Contemporary Kinship and Cowessess First Nation (Manitoba: University of Manitoba Press, 2013): John S. Milloy, The Plains Cree: Trade, Diplomacy, and War, 1790 to 1870 (Manitoba: University of Manitoba Press, 1990); June Scudeler, “At the Same Table,” Canadian Literature 223 (2014): 160. 6 James Youngblood Henderson, “First Nations’ Legal Inheritances in Canada: The Mikmaq Model,” Manitoba Law Journal 23, no. 1 (1996): 1-31. 7 Repgen, “Negotiating the Peace of Westphalia.” 8 See Patton, “The Peace of Westphalia”; Leo Gross, "The Peace of Westphalia, 1648-1948,” American Journal of International Law 42, no. 1 (1948): 20-41. 9 Benjamin Straumann, “The Peace of Westphalia as a Secular Constitution,” Constellations 15, no. 2 (2008): 173-88. 10 For an excellent historical account of the negotiations at Westphalia, see Andreas Osiander, The States System of Europe, 1640-1990: Peacemaking and the Conditions of International Stability (Oxford: Oxford University Press, 1994).
  • [8] Knop, “Re/Statements.” 2 Ibid. 3 Ibid. 4 For an historical account of the Seven Years’ War between the English and French Crowns, also known as the “French and Indian War”, in what is now North America, see Fred Anderson, Crucible of W&r: The Seven Years’ War anil the Fate of Empire in British North America, 1754-1766 (New York: Vintage, 2007). For contextualisation of the importation of European-based disputes between the English and French Crowns into North America in the Seven Years* War, see Daniel Baugh, The Global Seven Years War 1754—1763: Britain and France in a Great Power Contest (Abingdon: Routledge, 2014). 5 Robert J. Miller, “International Law of Colonialism: A Comparative Analysis,” Lewis & Clark Law Review 15 (2011): 847. 6 Tanja Aalberts, “Sovereign Marks,” in International Law’s Objects, eds. Jessie Hohmann and Daniel Joyce (Oxford: Oxford University Press, 2018), 456. 7 The Kawswentha (Mohawk) is also known as the Guswentha (Cayuga) and is often referred to in English as the Two-Row wampum belt. For more see Richard Hill, Oral Memory of the Haudenosaunee: Views of the Two Row Wampum (New York: American Indian Program at Cornell, 1990). 8 Ibid. 9 For examples, in addition to references cited elsewhere within this paper, see James Sydney Slotki and Karl Schmitt, “Studies of Wampum,” American Anthropologist 51, no. 2 (1949): 223-36; Wilbur R. Jacobs, “Wampum: The Protocol of Indian diplomacy,” The William and Mary Quarterly: A Magazine of Early American History 6, no. 4 (1949): 596-604; Daniel Coleman, “The Two Row Wampum-Covenant Chain Treaty and Trans-Systemic Resilience,” in Global Narratives of Resilience, ed. Ana Maria Fraile-Marcos (New York: Routledge, 2019), 21-38; Curran Katsi’sorokwas Jacobs, “Two-Row Wampum Reimagined: Understanding the Hybrid Digital Lives of Contemporary Kanien’keha: ka Youth,” Studies in Social Justice 13, no. 1 (2019): 59. 10 Angela M. Haas, “Wampum as Hypertext: An American Indian Intellectual Tradition of Multimedia Theory and Practice,” Studies in American Indian Literatures 19, no. 4 (2007): 78. 11 Ibid., 79-80.
  • [9] Daniel Philpott, “Westphalia, Authority, and International Society,” Political Studies 47, no. 3 (1999): 566-89. Other European powers, such as the Spanish, French and English were also both participants in the Westphalian negotiations and had long been engaged with various Indigenous nations in what is now North America. That only once Europe decided to generate the idea of a sovereign state in 1648, does not mean international law was founded that year and was without Indigenous influence. 2 Jon Parmenter, "The Meaning of Kaswentha and the Two Row Wampum Belt in Haudenosaunee (Iroquois) History: Can Indigenous Oral Tradition be Reconciled with the Documentary Record?” Journal of Early American History 3, no. 1 (2013): 82-109. 3 Ruth B. Phillips, "Fielding Culture: Dialogues Between Art History and Anthropology,” Museum Anthropology 18, no. 1 (1994): 39-46.
  • [10] Ruth Buchanan and Jeffery G. Hewitt, “Encountering Settler Colonialism Through Legal Objects: A Painted Drum and Handwritten Treaty from Manitoulin Island,” Northern Ireland Legal Quarterly 68, no. 3 (2017): 291. 2 Robert J. Miller, “The International Law of Colonialism: A Comparative Analysis,” Lewis & Clark Law Review 15 (2011): 847. 3 Robert A. Williams Jr., Linking Arms Together: American Indian Treaty Visions of Law and Peace, 1600-1800 (New York: Routledge, 2013), 8—9. 4 John Borrows, “Wampum at Niagara: The Royal Proclamation, Canadian Legal History, and Self-Government,” in Aboriginal and Treaty Rights in Canada: Essays on Law, Equity, and Respect for Difference, ed. Michael Asch (Vancouver: University of British Columbia Press, 1997), 155-72. 5 Ibid. 6 John Borrows, “Constitutional Law from a First Nation Perspective: Self-Government and the Royal Proclamation,” University of British Columbia Law Review 28, no. 1 (1994): 1-47. 7 Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. 8 Canadian Charter of Rights and Freedoms, s 7, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. 9 Borrows, “Wampum at Niagara.”
  • [11] Ania Loomba, Colonialism/Postcolonialism (New York: Routledge, 1998), 106. 2 Also known as Treaty at Niagara, is a large-scale wampum. For a visual of a reproduction, see: “Treaty of Fort Niagara,” accessed March 19, 2020, https://d3v7qf8zyypult.cloudfront.net/maa/en/images/2014-08-01/large/ 5de7405a01 fb96997b2934b07c20d05f.jpg. 3 As Aalberts, “Sovereign Marks,” set out, treaty-making in a variety of forms found in Indigenous legal orders was also utilised by European Crowns in what is now the United States of America, as well as in a number of African countries, such as the Congo. 4 Sharon H. Venne, “Treaties Made in Good Faith,” Canadian Review of Comparative Literature/Revue Canadienne de Littérature Comparée 34, no. 1 (2007): 4. 5 Mark Charles and Soong-Chan Rah, Unsettling Truths: The Ongoing, Dehumanizing Legacy of the Doctrine of Discovery (Westmont, IL: Intervarsity’ Press, 2019), 27.
  • [12] C. Wright Milk, Tile Sociological Imagination (New York: Oxford University Press, 1959), 6-7. 2 Gillette, “Wampum Beads and Belts,” 29. 3 George Lakoff, Women, Fire, and Dangerous Tilings (Chicago: The University of Chicago Press, 1987), xi. 4 Malcolm N. Shaw, International Law, 7th ed. (Cambridge: Cambridge University Press, 2014). 5 Anghie, “Finding the Peripheries,” 102. 6 There was opportunity to formally recognise Indigenous nations in 1933 in Montevideo, Uruguay, with the Montevideo Convention on Rights and Duties of States, adopted by the Seventh International Conference of American States. Among other things, this convention held that only sovereign states already recognised in 1933 would determine present and future statehood, ensuring the existing successor states of former European colonies would continue to be recognised and upheld at international law, while ignoring the sovereignty of Indigenous nations. For more see Mikulas Fabry, Recognizing States: International Society and the Establishment of New States Since 1776 (Oxford: Oxford University Press, 2010); Hurst Hannum. “Sovereignty and Its Relevance to Native Americans in the Twenty-first Century,” American Indian Law Review 23, no. 2 (1998): 487-95. 7 Ibid., 65. 8 Ibid., 71.
 
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