HR/GENEVA/TSIP/SEM/2003/BP.1
EXPERT SEMINAR ON TREATIES, AGREEMENTS AND OTHER CONSTRUCTIVE
ARRANGEMENTS BETWEEN STATES AND INDIGENOUS PEOPLES
Geneva
15-17 December 2003
Organized by the Office of the United Nations High Commissioner for Human Rights
The International Character of Treaties with Indigenous Peoples and
the Utilization of Treaties about them
Background paper prepared by
Mr. James W. Zion
for the National Indian Youth Council and the
Navajo Working Group for Human Rights
-------The views expressed in this paper do not necessarily reflect those of the OHCHR.
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INTRODUCTION
This paper is written for the Expert Seminar on treaties, agreements and other constructive
arrangements between States and indigenous peoples. It is important, because it addresses the
recommendations of the masterful Study on treaties, agreements and other constructive
arrangements between States and indigenous populations.1
In August of 2003, the United States Department of State held a meeting in
Albuquerque, New Mexico to discuss the positions of the United States of America in the
negotiation of an inter-American declaration of the rights of indigenous peoples. State
Department representatives took two positions there that are disturbing to indigenous peoples of
the United States: First, that Indian treaties are not international instruments to be interpreted
under principles of international law; and second, that the United States does not believe that
provisions in international treaties between states confer rights for indigenous peoples. This
paper refutes those positions, and it will (1) discuss the importance of the expert seminar as an
opportunity to make statements of “soft” and “hard” international customary law; (2) support the
conclusion of Dr. Miguel Alfonso Martinez that treaties and agreements with indigenous
peoples are international in character and interpretation; and (3) address the continuing viability
of treaties with protections for indigenous peoples.
“SOFT” AND “HARD” INTERNATIONAL LAW
The Universal Declaration of Human Rights (1948) was a watershed event in human
history. The states assembled in Geneva developed a global statement of the basic rights of all
humans and were able to reach consensus on a general outline of those rights. State delegates
were pragmatic and realistic, realized the difficulty of reaching consensus on specific statements
of human rights in the Declaration, and the United Nations developed a methodology to
elaborate more specific human rights principles in studies of existing international customary
law, declarations of rights, and finally, international covenants for states to adopt and
implement in domestic law. The process is called “standards-setting.”2
The United Nations began setting standards to declare the human rights of indigenous
peoples as the subjects of discrimination. That is an important consideration, because the
standards-setting process for indigenous peoples has deteriorated and it has become
discriminatory because statements of “rights” are being abandoned for them. Following initial
studies of the rights of indigenous peoples that were weak and provided little substantive
content, when experts developed a draft statement of the rights of indigenous peoples, the
process faltered. Discussions of the adoption of a Declaration of the Rights of Indigenous
Peoples stalled because some state parties insist that the document should not be a declaration
of “rights” as such, but only of hopes, wishes and aspirations that cannot be enforced.
The statement is often made that a United Nations declaration is not “binding” on states.
We should re-examine the definition of international customary law, which (under Article 38 of
the Statute of the International Court of Justice) is “international custom, as evidence of a
general practice accepted as law.”3 It is a “general recognition among states of a certain practice
1
Doc. E/CN.4/Sub.2/1999/20.
See SARAH PRITCHARD, SETTING INTERNATIONAL STANDARDS: AN ANALYSIS OF THE
UNITED NATIONS DRAFT DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES (2 nd ed. 1998)
(standards-setting and the rights of indigenous peoples).
3
IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 4 (1990) (quoting the
section).
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as obligatory,”4 and in the absence of the adoption of a treaty by a state, “it may be implied by a
state acquiescing in a customary rule.”5 The traditional definition is inductive, based upon a
review of of state practice, and the modern definition is deductive, and focuses upon statements
adopting principles as being customary.6 The key point is that “Modern custom can develop
quickly because it is deduced from multilateral treaties and declarations by international fora
such as the General Assembly, which can declare existing customs, crystallize emerging
customs, and generate new customs.”7 The two major elements of international custom are state
practice or opinio juris, the belief there is a legal obligation.8
There is a modern trend, called “soft law,” where “global general organizations, global
specialized organizations, regional organizations and private groups” negotiate and reach
consensus on “non-binding” international standards.9 They are important because, as states
concur that certain principles bind them, in statements of acceptance or the evolution of state
practice following them, they can “harden” and become “law” at some point.10
Therefore, Office of the High Commissioner for Human Rights seminars are important
because they too can produce non-binding “soft law” consensus that may either harden into
customary international law, or be evidence of customary international law. In addition, “the
teachings of the most highly qualified publicists of the various nations” are “a subsidiary means
for the determination of rules of law” under Article 39 of the Statute of the International Court
of Justice.11 While the definition of “publicist” is unsettled, special rapporteurs making reports
to the United Nations, and indigenous “experts” at seminars such, as this may fit that definition.
Therefore, it is important for this seminar to recognize the potential impact of its findings and
conclusions.
TREATIES AS INTERNATIONAL INSTRUMENTS
Dr. Miguel Alfonso Martinez was correct in concluding that treaties with indigenous
peoples are international in character, although that conclusion has been dismissed by some.
The domestic law of the United States of America, as its opinio juris, is the same. The 1876
United States Supreme Court decision in U.S. v. Forty-Three Gallons of Whiskey held that
treaties with Indians have equal dignity with treaties with other nations or states.12 That is
important, because treaties can then be interpreted using the three standards of treaty
interpretation in the Vienna Convention on the Law of Treaties (1969) that they must be
interpreted (1) in good faith; (2) in light of their context (including historical context and
contemporary human rights norms); and (3) in accordance with their object and purpose,
including objectives and purposes of principles of anti-discrimination and self-determination in
international indigenous human rights law as it develops.
4
Id.
J.L. BRIERLY, THE LAW OF NATIONS: AN INTRODUCTION TO THE INTERNATIONAL LAW
OF PEACE 51 (1973).
6
Anthea Elizabeth Roberts, Traditional and Modern Approaches to Customary International Law: A
Reconciliation, 95 AM. J. INT’L. L. 757, 758 (2001).
7
Id. For an overview of the American rule of proving custom, see BETH STEPHENS & MICHAEL
RATNER, INTERNATIONAL HUMAN RIGHTS LITIGATION IN U.S. COURTS 52-58 (1996). For an
equitable approach to customary law and treaty interpretation, see CHRISTOPHER R. ROSSI, EQUITY AND
INTERNATIONAL LAW (1993).
8
Roberts supra, n. 6 at 757.
9
Dina Shelton, Law, Non-Law and the Problem of “Soft Law,” in COMMITMENT AND
COOPERATION: THE ROLE OF NON-BINDING NORMS IN THE INTERNATIONAL LEGAL SYSTEM 1, 3
(2000).
10
Id. at 15.
11
Brownlie supra, n.3 at 3.
12
U.S. v. Forty-Three Gallons of Whiskey, 93 U.S. 188, 196-198 (1876).
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TREATIES ABOUT INDIGENOUS PEOPLES
The United States of America has ratified international treaties with states that declare
the rights of American Indians, including the treaty that concluded the American Revolution
against Britain,13 the treaty that concluded a second war with Britain,14 and the treaty that
concluded a war with Mexico, the Treaty of Guadalupe-Hidalgo (1848). The third will be used
to illustrate the point that treaties that guarantee the rights of indigenous peoples are an
important source of law.
The United States specifically pledged it would treat Indians well to assure Mexico that
pressure upon them would not cause their migration to, or invasion of, Mexico.15 Article IX
assured that the former Mexican inhabitants of the American Southwest would be “protected in
the free enjoyment of their liberty and property.”16 That provision has been used to declare the
rights of Indians under the Treaty.17 It is curious that while several decisions of state courts
accept the continuing viability of Spanish and Mexican law under the Treaty, the United States
takes the position that it does not confer rights on Indians,18 but it is clear that it does confer
rights under the opinio juris of the United States.
CONCLUSION
This paper shows that this seminar is important because (1) it can be used to set “soft”
international law standards based upon the contributions of indigenous experts, that can harden
into rules of customary international law or be a source for finding such law; (2) it will
reinforce Dr. Miguel Alfonso Martinez’ conclusions on the international character of treaties
with indigenous peoples for international treaty interpretation standards; and (3) it will reexamine and reinforce international treaties among states as sources of the rights of indigenous
peoples.
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The Treaty of Amity, Commerce, and Navigation (1794) (the “Jay Treaty”) (recognizing Northern
American Indian trade and border crossing rights).
14
The Treaty of Peace and Amity Between His Britannic Majesty and the United States of America
(1814) (the “Treaty of Ghent”) (reaffirming the provisions of the Jay Treaty on Indians).
15
GRISWOLD DEL CASTILLO, THE TREATY OF GUADALUPE HIDALGO: A LEGACY OF
CONFLICT 190-191 (1990) (text of Article XI of the Treaty).
16
Id. 190. The term “liberty and property” in the Treaty is curious, because it was also used in the 1537
papal bull, Sublimis Deus, that declared that the Indians of the Americas had full rights to liberty and property, and
that nothing done to deny them would ever be valid.
17
See, e.g., United States v. Abeyta, 632 F. Supp. 1301, 1305 (D.N.M. 1986) (the right of an Indian to
hunt eagles is a pre-existing Indian right under the Treaty). (Indians were citizens of Mexico under Mexican law).
18
New Mexico has the most extensive case law on point, recognizing the continuing application of
Spain’s Siete Partidas (a 13th century code) and the Recopliacion de Los Leyes de Los Reinos de Las Indias (1680)
as good law. The second code, which is a collection of the Spanish decrees, instructions, etc. that make up Derecho
Indiano is important, because it is evidence of a core of legal principles regarding indigenous peoples adopted in
the state practice of most colonial powers and sometimes recognized in statements about them. It is a source of the
customary international law of indigenous peoples.
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