I
n their work, both Lauren Benton and Shiri Pasternak examine the fluidity of legal relationships through conceptions of jurisdiction which overlap, entangle, and shift over time. As Pasternak explains, seeing “jurisdiction as a spatial category… [allows] for the examination of the production of colonial space through the work of jurisdiction” (emphasis mine. 2014: 147) Pasternak’s geographic lens positions law and space as political, as contested categories that come together in constituting colonial claims to authority; to colonial jurisdiction over others.
As a result, layers of colonial and imperial authority “become thicker or thinner as peoples’ movements through space produce new arrangements and negotiations of power,” (Pasternak, 2014: 149) bringing with them further systems of domination. As unevenly asserted and applied across space and time, jurisdiction-as-infrastructure opens up a refutation of the completeness of the colonial project. Infrastructure, in this sense, is understood not only as a ‘structure,’ but also as ‘process’; one that works to produce other systems and relations. This perspective highlights the productive aspects of jurisdiction, rather than accepting legal authority and law as removed from the space they claim. Instead, when framed as infrastructure, jurisdiction is shown to be a process of “overlapping authority claims between Indigenous, state, regional, and private interests, and it can help parse the ways in which these jurisdictional encounters produce colonial space” (Pasternak, 2014: 146).
The importance of this emphasis on process and production is that, even as laws are instituted and legal systems established, jurisdiction forms its necessary and underlying infrastructure; “the power to speak the law” (Pasternak, 2014: 148). Jurisdiction-as-infrastructure highlights this claim-making, opening up law and legal authority as a contested category. Mentioned above, this approach refuses an acceptance of “law” as a pre-spatial category, positioning instead not only the content of the law but its claim to applicability over a given space as something that must be established, and therefore maintained. As such, law is produced through claims to jurisdiction, and by situating it as such in the colonial process reveals uneven and contested geographies of power. Law, legal systems, and the authority to impose them become highly historicized objects, ones that are spatially and relationally contingent in their production, enactment, and perpetuation. Through examining jurisdiction as infrastructure then, colonial and imperial authority not only become, but already are, contested and contestable claims.
By asserting that legal authority is continually produced, the voices of Indigenous claims and contestations become themselves jurisdictional “lumps that betray patterns of partial and uneven state sovereignty” (Pasternak, 2014: 148). The singular authority that colonial powers claim is instead unsettled and made to compete. This framework importantly resists the perspective of the fatal impact theory, wherein the colonial encounter produces a terminal “historical descent into a state of nothingness and hopelessness” (Smith, 1999: 88) of Indigenous cultures and peoples, as well as reduction of the colonized to “the concept of “bare lives” … [withdrawing] all form of agency from the bodies targeted by this violence” (Lambert, 2017: 13). Its spatial qualities belie the finality of colonial authority, as the emphasis on the power “to speak” the law, rather than the law itself, allows for non-colonial and non-state forms of authority to be recognized.
Jurisdiction works as a process over time to establish and claim authority over space. As necessarily contingent, relational, and historical, for this short intervention an examination of the long imperial/colonial history of the Marshall Islands reveals some of the ways that jurisdiction takes on “a quality of lumpiness” (Benton, 2005: 701). At the same time the contemporary work of the Nuclear Claims Tribunal (NCT), established under the Compact of Free Association (COFA), opens up space to discuss both the possibilities of resistance through jurisdictional claims and the incompleteness of the postcolonial project.
Moving from infrequent economic exchange with Spain (established through the Treaty of Tordesillas, 1594), German interests in the islands were recognized in 1885. However, their relationship with the islands was primarily established in 1878 through a treaty with one local chief, granting them exclusive use of a Jaluit Atoll harbor and trading privileges. The combination of inter-imperial and German-indigenous relations positions, even tacitly, indigenous jurisdiction over access and use of island harbors and resources on a relatively even plane with imperial claims. Yet, in 1914, when the Japanese seized the Marshall Islands from Germany during WWI, it was not a renegotiation of a treaty between the new imperial power and local chiefs, but rather seizure of one empire’s land and transference of control to another. Viewed as a German protectorate, the shifted context meant that since “a state of war existed between… nations… therefore the takings were legal” (emphasis mine. Benton, 2005: 705). As inter-imperial conflict, the transfer from German to Japanese possession overlapped with German-Indigenous treaties. As the former did not require a reconsideration of the latter, it implicitly arranges them in a hierarchical legal relationship.
Centering jurisdiction as infrastructure, Japanese claims over Germany’s imperial relation to the Marshall Islands is temporarily troubled. If this “transfer” is something necessarily produced, then by what authority does Japan claim possession of the Marshall Islands, especially considering the German-Marshall relationship was negotiated directly with local Islander authority? Rather, these transfers should be seen less as a shifting of powers but a cementing of certain legal relationships that works to produce a privileging of imperial and colonial claims over those of indigenous peoples. This did not equate in a complete erasure, as much as the imperial/colonial project might desire, but rather a layering on of different dominating relations.
This fungibility of (imperial) authority shifted not necessarily under the auspices of a single imperial power, but rather across powers through imperial jurisdictional understandings and transitions through conquest. In this way, “territory… was constructed not just for empire but also in empire, and at its margins” (Benton, 2005: 701). Divesting the Marshallese of authority was not a foregone conclusion, but one produced out of the very practice of empire. When the United States defeated Japan in the islands in 1944, assertion of authority over the Islands in 1945 was in this sense a claim less in relation to the Marshallese peoples, but rather against the Japanese empire.
Perhaps an irony of this shifting web of jurisdiction between imperial powers is found in a statement from the UN in 1947 (itself newly established and working to assert its own claims to authority) made to declare the Marshalls a trust territory of the U.S. Not only was this the only trusteeship “designated as a “strategic” territory,” granting greater latitude over the securitization of the region, but the UN declared the responsibility of the U.S. to “protect the inhabitants… against the loss of their lands and resources” (emphasis mine. Barker, 2013: 22). This language implies a form of ownership by the Marshallese over the islands, yet positions it as a subordinate claim to the paternalistic oversight of the U.S. This reflexive maneuvering of possession and authority constitutes a “cynical grounds for recognition” that “also entrenched the subordination of Indigenous societies” (Pasternak, 2014: 159). Through representing Marshallese possession of their islands, U.S. (and UN) authority is asserted, structured, and simultaneously folds Marshallese claims under this oversight.
Though a shifting terrain, this post-World War II legal relationship is predicated on preceding imperial ones, and their own claims to “speak the law” in Marshallese lands. The infrastructure of inter-imperial jurisdiction becomes productive of US claims to the islands, as seized from Imperial Japan, as well as the UN’s claim to be able to designate a certain kind of authority over them. The long historical process started with infrequent Spanish trading, when understood though conceptions of jurisdiction over the islands reveals the long production of the islands as colonial space, privileging (primarily) Western imperial authority over Indigenous claims over their land.
This imperial history of the Marshalls forms the centuries long preamble and pretext that established a legal context wherein the United States could be “granted” the Islands as a strategic territory under their trusteeship; pursuing sixty-six nuclear tests between 1946-1963 and ongoing ballistic missile testing in the islands. As the Cold War continued, the Marshallese of various communities sent petitions through both US and UN channels to protest and improve their position under US “strategic” oversight. Understanding these within the productive infrastructure of jurisdiction, American legal authority and aspects of the colonial dynamic are brought into question through both an invocation of UN authority, and the very voices of the Islanders who petition, protest, and contest. Within a broader framework of Cold War decolonial movements, the basis of and imperial power to “speak the law” became increasingly troubled. In addition to gaining periodic concessions, tensions between indigenous movements and continued US investment in the Marshall Islands as a military (test) site culminated in the 1980s with negotiations for the COFA. As a victory for indigenous sovereignty this nominally recognizes Marshallese self-government even as it simultaneously perpetuates US military and colonial interests.
Following jurisdiction through the COFA, the establishment of the NCT was to provide “jurisdiction to render final determination upon all claims past, present, and future” (Pevec, 2005) regarding the nuclear testing program. Given $150 million for these ends, Smith-Norris (2016: 40) notes how the “finality” of this agreement also resulted in the dismissal of all claims pending in the United States, as courts in the US were divested of jurisdictional authority over these matters. Although woefully underfunded, and the possibility of pursuing legal cases within US courts being denied, the findings of the NCT function as an avenue for pressuring the United States for further redress for the legacy of its testing program. It is noted (Smith-Norris, 2016: 41) that having awarded $341,049,311 in damages to the Enewetakese alone in 2000, the findings of the NCT are not immediately actionable (though payments are made as much as is possible). Instead, assessment of damages, processing of claims, and the power to speak the law in cases of redress for nuclear testing, contamination, and devastation has become a new lump in the US-Marshallese relationship.
Though quickly running up against a limited budget, this shifting jurisdictional geography opens up a site of resistance as well as a look into the incomplete nature of decolonization. After an independent review of the NCT by former US Attorney General Richard Thornburgh in 2003 and a 2012 UN investigation into impacts of the testing program, the findings of the NCT comprise a mechanism of knowledge production about the legacies of nuclear contamination independent from US oversight. As the Marshallese continue to argue for adequate compensation through the NCT, examining jurisdiction as infrastructural process through which colonial and imperial authority can be asserted, its “return” through decolonization belies the uneven power dynamics and systems that continue to pervade colonizer/colonized relations. However, through the NCT and its claim to jurisdiction over damages due to the Marshallese people as a result of the United States’ nuclear testing and colonial domination, these contestations might be seen as more than an uneven power dynamic. These claims to authority by the NCT, and by extension the Marshallese people, are not simply petitions to US or UN law. They are themselves claims to sovereignty that are one part of a larger decolonial struggle, where the NCT’s jurisdiction produces a new vision and future for the Republic of the Marshall Islands.
It seems true that the “decolonization” promised through the COFA and the establishment of the NCT is not a recognition of an originary, total jurisdiction, but a modified and contingent one that maintains other structures of domination. Just as jurisdiction opens a recognition of the process and contested nature of coloniality, as part of the postcolonial project it reveals its own incompleteness. The ability of the US to deny responsibility for the ongoing impacts of its nuclear colonialism and payment of damages concluded by the NCT makes clear that jurisdictional authority is but one of the necessary components for a true decolonization of the Marshall Islands. Yet employing it as a point of intervention can help reveal the contours of domination that make up the lumpiness of imperial and (post)colonial dynamics.
For a historical approach, consideration of jurisdiction as infrastructure can help to make clear the long duration, and process, of imperial and colonial imposition and assertions of authority. Important to this is that jurisdiction as productive of the colonial context and relationship helps to set the stage for other forms and systems of power; jurisdiction does not travel alone. For the decolonizing process then, understanding it as infrastructure can reveal other forms of colonial persistence. Even as jurisdiction is “returned” or recognized in purportedly (de)colonized peoples, unequal power dynamics and neo-colonial systems persist through other forms. Being productive of colonial and imperial claims to authority, a site of contestation that “actively works to produce something” (Dorsett and McVeigh quoted in Pasternak, 2014: 151) it is also a process of multiple “things” in the making. Perhaps as an ethical statement, this framework also insists on hopeful potential and possibilities for decolonial struggles, even as it provides a valuable critical approach to understanding the complexities of colonial domination. Centering debates and claims worked out through jurisdiction can reveal both the production and persistence of colonialism, but also competing systems and visions of post- or de-colonial futures.
References
Barker H (2013 [2004]) Bravo for the Marshallese: Regaining Control in a Post-Nuclear, Post-Colonial World. Belmont: Wadsworth, Cengage Learning.
Benton L (2005) Legal Spaces of Empire: Piracy and the Origins of Ocean Regionalism. Comparative Studies in Society and History 47(4): 700-724.
Lambert L Introduction: Archipelagos and Indigenous Imaginaries. The Funambulist 9: 12-13.
Pasternak S (2014) Jurisdiction and Settler Colonialism: Where Do Laws Meet? Canadian Journal of Law and Society 29(2): 145-161.
Pevec D (2005) The Marshall Islands Nuclear Claims Tribunal: The Claims of the Enewetak People. Paper presented at the PLAGE Conference, Salzberg, Austria, October 2005.
Smith LT (1999) Decolonizing Methodologies: Research and Indigenous Peoples. London: Zed Books.
Smith-Norris M (2016) Domination and Resistance: The United States and the Marshall Islands during the Cold War. Honolulu: University of Hawai’i Press.
