(Study on treaties, agreements and other constructive arrangements, Chapter IV, part 2)
275. This leads to the issue of whether or not treaties and other legal instruments concluded by the European settlers and their successors with Indigenous nations currently continue to be instruments with international status in light of international law.
276. The Special Rapporteur is of the opinion that said instruments indeed continue to maintain their original status, and to be fully in effect and consequently, are sources of rights and obligations for all the original parties to them (or their successors), who shall fulfill their provisions in good faith.
277. The legal reasoning supporting the above Conclusion is very simple and the Special Rapporteur is not breaking any new ground in this respect. Treaties without an expiration date are to be considered as continuing in effect until all the parties to it decide to terminate them, unless otherwise established in the text of the instrument itself, or unless, its invalidity is declared. This is a nction that has been deeply ingrained in the conceptual development, positive normativity, and consistent jurisprudence of both municipal andinternational law since the times in which Roman Law was at its zenith more than five centuries ago, when modern European colonization began.
278. As a result of his research, the Special Rapporteur has ample proof that
Indigenous peoples/nations who have entertained treaty relationships with non- indigenous
settlers and their continuators, strongly argue that those instruments not only continue
to be valid and applicable to their situation today but are a key element for their
survival as distinct peoples. All those consulted --either directly in mass meetings with
them, or in their responses to the Special Rapporteur's questionnaire, or by direct or
written testimony-- have clearly indicated their conviction that they indeed remain bound
by the provisions of those instruments that their ancestors, or they themselves, concluded
with the non-indigenous peoples.
279. Competent authorities in some countries - -e.g. Canada and New Zealand-- have also told the Special Rapporteur that their respective Governments too consider their treaties with Indigenous peoples to remain fully valid and in effect (albeit, they differ radically from their Indigenous count.erparts regarding construction of the contents).
280. Nonetheless, the Special Rapporteur has been able to ascertain --in the course of his research and in situ observation--, a large number of obvious, serious violations of the legal obligations undertaken by the State party to those instruments (in particular, to the so-called "historic treaties" and to legal commitments involving Indigenous lands) in practically all stages of the process of domestication described in Chapter III, particularly in the second half of the 19th century.
281. Probably the most blatant case in point is the United States Federal Government's taking of the Black Hills (in the present day state of South Dakota) from the Sioux Nation during the final quarter of the last century. The lands which included the Black Hills had been reserved for the Indigenous nation under provisions of the 1868 Fort Laramie Treaty. (U.S.Stat. 635 (1868)) It is worth noting that in the course of the litigation prompted by this action, the Indian Claims Commission declared ( 207 Ct. Cl. at 241, 518 F.2d at 1302 (1975).) that "A more ripe and rank case of dishonourable dealing will never, in all probability, be found in our history, " and that, both that Court. of Claims, in 1979, and the Supreme Court of that country (United States v. Sioux Nation of Indians, \plain\f2\fs18\cf0 448 U.S. 371 (1980) ) decided that the U.S. Government had unconstitutionally taken the Black Hills in violation of the U.S. Constitution. However, U.S. legislation empowers Congress, as the trustee over Indian lands, to dispose of said property including its transfer to the U.S. Government. Since the return of lands improperly taken by the Federal Government is not within the province of the courts but falls only within the authority of the Congress, the Supreme Court limited itself to establishing a $17.5 million award (plus interest) for the Sioux. The Indigenous part, interested not in money but in the recovery of the lands possessing a very special spiritual value for them-- has refused to accept the monies, which remain undistributed in the U.S. Treasury, according to the information available to the Special Rapporteur.
282. It is well known that fulfilment, in good faith, of legal obligations that are not in contradiction with the United Nations Charter (Article 2-2) is considered to be one of' the tenets of present day positive international law and one of the most important principles ruling international relations; being as it is, a peremptory norm of general international law (jus cogens). Of course, Article 26 of the Vienna Convention on the Law of Treaties has enshired the principle of pacta sunt servanda as the cornerstone of the law of treaties, and mention has already been made above of the importance of its Article 27.
283. It should also be borne in mind, that the Draft United Nations Declaration
on the Rights of Indigenous Peoples expresses the same concept with particular emphasis.
In article 36, it establishes that "Indigenous peoples have the right to the
recognition, observance and enforcement of treaties, agreements and other constructive
arrangements concluded with States or their
successors, according to their original spirit and intent, and to have States honour and respect such treaties, agreements and other constructive arrangements."
284. On the other hand, the unilateral termination of a treaty or of any other international legally binding instrument, or the non-fulfilment of the obligations contained in its provisions, has been --and continues to be-- unacceptable behaviour according to both the Law of Nations and more modern international law. The same can be said with respect to the breaching of treaty provisions. All these actions determine the international responsibility of the State involved. Many nations went to war over this type of conduct by other parties to mutually agreed upon compacts, during the period (from the 16th to the late 19th century) when the colonial expansion of the European settlers and their successors was at its peak.
285. The Special Rapporteur has also concluded that a number of current conflict situations respecting Indigenous treaty/agreement issues have to do with substantial differences in the construction of their provisions; in particular, those related to the object and purpose of the compact in question. A relevant case is the Treaty of Waitangi. The Maaori and Pakeha constructions of it differ in matters as crucial as the alleged "transfers" of governance/sovereignty powers and "land title" to the non-indigenous settlers, as well as on the actual purpose of the compact itself. A well known scholar (Claudia Orange, The Treaty of Waitangi, Allen & Unwin, Wellington, 1987, pp. 32-33, and 122.) has described how the main British negotiator, having been instructed to secure British sovereignty over Maaori lands in order to exercise exclusive control over them so as to proceed with peaceful colonisation, deliberately blurred the meaning of the term sovereignty and hid from the Maaori parties the fact that the cession they were agreeing to would ultimately mean a significant loss of Maaori power. Despite, the Maaori's confident belief that the treaty had confirmed their right to property, even the more important rights of rangatiratanga would ultimately have to give way to Crown authority.
286. It should be taken into account that indigenous practices of treaty- making were totally oral in nature and written documents were absent from this process. In addition, it was extremely difficult to fully follow all aspects of the negotiations through translators (who,most likely were not always perfectly accurate), not to mention the fine print in the written version submitted to them, in the alien language, by the non-indigenous negotiators. Further, it was impossible for them, in most instances, to produce a written copy with their understanding of the rights and obligations established in said instruments.
287. The Special Rapporteur considers it important to stress that his research revealed that treaties, in particular, concluded with Indigenous nations, have frequently played a negative role with respect to Indigenous rights. On many occasions they have been intended --by the non-indigenous side-- to be used as tools to acquire "legitimate title" to the Indigenous lands by making them formally "extinguish" those and other rights as well. In a document personally submitted by one respected Indigenous chief, (Chief Oren Lyons from the Haudenosaunee Confederacy. The document was personally submitted to the Special Rapporteur in February 1998.) on behalf of his nation, it is noted that treaties on occasion are used to force Indigenous peoples to bargain away their ancestral and treaty rights.
288. Finally, considering the very limited data available to him, at this final stage of the Study, with respect to treaties between States affecting Indigenous peoples as third parties, the Special Rapporteur can offer only the preliminary Conclusion that, according to all evidence there is no acceptance by the affected Indigenous parts of the obligations included in their provisions (Article 35 of the Vienna Convention on the Law of Treaties makes such an acceptance indispensable for an obligation to be established for third parties to any treaty.) nor any participation by them in the implementation of such treaties.
289. Something must now be said with respect to the situation of Indigenous peoples who have never been formally recognized as nations by means of negotiated and formalised international juridical instruments with non- indigenous States. Particular attention should be paid to the issue of whether or not they continue to retain today their status as nations in the light of contemporary international law. The key question to be posed in this respect, in the view of the Special Rapporteur, is: By what means could they possibly have been legally deprived of such a status, provided their condition as nations was originally unequivocal and has not been voluntarily relinquished?
290. The Special Rapporteur is of the opinion that to link the determination of the "original" legal status of Indigenous peoples as nations (in the contemporary sense of international law) or as "no-nations" to the single factor of whether or not they have formalised relations with non-indigenous colonising powers, is faulty. Not only does it go against the tenets of natural law but, it is also illogical. The fact that some of them did not have juridical relations with the colonial powers --in many cases, during the early stages of a colonising project, simply because the newcomers did not happen across their path-- does not appear sufficient reason to establish such a drastic differentiation between their rights and the rights of those who did.
291. It is important to recall that modern non-indigenous law long ago dispelled the theory advocating that the absence of formal legal/political recognition from one sovereign entity (or a group of them) could determine both the existence of and the juridical international status of another. The theory was thrown out as an aberration vis a vis the principles of sovereignty and equal rights of all States. International entities, unrecognised by some members of the international community, continue nevertheless to exercise their attributes as subjects of international law and in doing so may entertain relations with all other interested international subjects. All that is required for this is that the entities possess the necessary elements to be considered international subjects: territory, population, an institutionalized form of government, and thus, the capacity to conclude international agreements.
292. In addition, other non-juridical theories serving as the basis for depriving Indigenous peoples, in general, of their original international status have also been discarded in light of the new perceptions and theoretical elaborations of modern international law. For example, the concept of terra nullius was formally put to rest by the International Court of Justice in its advisory opinion in the Western Sahara case, (1975 I.C.J. 12.) as well as by the well-known 1992 Mabo v. Queensland decision 66 handed down by Australia's High Court. Further, the international community has widely repudiated the deprivation of such a status by conquest and armed force. The provisions to that effect in the Organization of American States Charter and Article 2-4 of the United Nations Charter prove that contemporary international law rejects the notion that force and conquest may bestow rights.
293. Hence, the Special Rapporteur is of the opinion that should these Indigenous people who never entered into formal juridical relation --via treaties or otherwise-- with non-indigenous powers as did other Indigenous peoples living in the same territory wish to claim for themselves juridical status also as nations, it must be presumed --until proven otherwise--that they do continue to enjoy such a status. Consequently, the burden to prove otherwise falls on the party challenging their status as nations. In any possible adjudication of such an important issue, due attention should be given to an evaluation of the merits of the juridical rationale advanced to support the argument that the Indigenous people in question somehow have lost their original status.
294. Having presented in the first part of this Chapter, the Conclusions of this Study, the Special Rapporteur will proceed to his final Recommendations. As was the case when drafting his Conclusions, the Special Rapporteur deems it necessary to recall certain general points of reference --advanced at earlier stages of his work-- that should now guide the formulation of these Recommendations.
295. The Special Rapporteur considers it useful to recall that according to his mandate this Study was not to be limited to an analysis of past legal instruments and their contemporary significance, nor to a review of whether or not they are being currently implemented, regardless of the value that such a review might have for both the present and the future.
296. If such an historical overview has been given such an ample treatment in Chapter III supra, it is because the Special Rapporteur felt this would help to obtain a well-informed forward looking approach to the key issue, that is, the need "to evaluate the extent to which the conclusion of new treaties, agreements and other constructive arrangements between Indigenous populations and States may contribute effectively to the development of more solid, lasting and equitable bases for the relationships that will necessarily have to continue to exist between Indigenous populations and States."
297. Also to be borne in mind is that the Special Rapporteur has identified ultimate purpose of his mandate as offering elements toward "the achievement, on a practical level, of the maximum promotion and protection possible, both in domestic and international law, of the rights of Indigenous populations and especially of their human rights and fundamental freedoms," (E/CN.4/Sub.2/1988/24, Add. 1, para. 10, and E/CN.4/Sub.2/1991/33, paras. 71 and 74.) by means of creating new juridical standards, negotiated and approved by all the interested parties, in a process tending to contribute to the building of mutual trust ( Ibid., para. 14. ) based on "good faith, mutual understanding of the other parties' vital interests, and deep commitment from all of them to respect the eventual results of the negotiation". ( E/CN.4/Sub.2/1991/33, para. 85. )