Opinio Juris

The BBC reports that the New Zealand government and seven Maori tribes have entered into an historic agreement concerning Maori ownership of a number of forests in the North Island, where I live:

The NZ$420m ($319m) agreement transfers ownership of nine forests - covering 435,000 acres (176,000 hectares) of land - in the central North Island.

Hundreds of Maori, some in traditional dress, thronged parliament to witness the signing of the accord.

"It's a historic journey we are on," Prime Minister Helen Clark said.

"We came into politics to address injustice and seek reconciliation. Thank you for walking that road with us on this historic day," she added, according to AP news agency.

The settlement - the largest single deal between the government and Maori tribes - seeks to address grievances dating back to the 1840 Treaty of Waitangi.

The treaty guaranteed the indigenous Maori people use of their land and resources in return for ceding sovereignty to the British crown. But land seizures and ownership breaches followed.

The forests signed over are mainly large commercial pine plantations, generating about NZ$13m a year in rents.

The settlement also hands over rents that have accumulated on the land since 1989.

Between them, the seven tribes or iwi include more than 100,000 members. They will manage the land collectively, setting up a holding company structure and forestry management structure.

The agreement, known as the "Treelords" deal — echoing the very controversial 1992 Sealords deal, which ultimately led the New Zealand Parliament to extinguish all Maori claims to commercial fishing rights — is indeed historic. I would take issue, though, with the article's claim that the Treaty of Waitangi "guaranteed the indigenous Maori people use of their land and resources in return for ceding sovereignty to the British crown." That interpretation is consistent with the English version of the Treaty — but not with the Maori version. (The two versions were drafted separately, and the English version is not a translation of the Maori, even though the Maori version was drafted first.)

Here is Article 1 of the Treaty in English:

The Chiefs of the Confederation of the United Tribes of New Zealand and the separate and independent Chiefs who have not become members of the Confederation cede to Her Majesty the Queen of England absolutely and without reservation all the rights and powers of Sovereignty which the said Confederation or Individual Chiefs respectively exercise or possess, or may be supposed to exercise or to possess over their respective Territories as the sole Sovereigns thereof.

And here is Article 1 in Maori:

Ko nga Rangatira o te Wakaminenga me nga Rangatira katoa hoki ki hai i uru ki taua wakaminenga ka tuku rawa atu ki te Kuini o Ingarani ake tonu atu-te Kawanatanga katoa o o ratou wenua.

I have bolded the operative terms. The problem is that kawanatanga does not mean "sovereignty"; it means "governance" — a much weaker term. Indeed, it is clear that the Maori did not intend to cede anything resembling sovereignty to the Queen, given that the Maori version of the Treaty does not use the Maori word for "sovereignty," kingitanga, or even the Maori word for "independence," rangatiritanga.

Just as important, the British had to have known that the Maori did not intend to cede sovereignty to the Queen. In 1835, the British and the Maori had signed the Declaration of Independence, in which the British guaranteed that the Maori chiefs would maintain sovereignty over their land. The Declaration made use of all three of the words that are at the heart of the dispute over the Treaty, with the British translating rangatiritanga as "independence," kingitanga as "sovereign power and authority," and kawanatanga as "functions of government." How then could the British have honestly believed a mere five years later — with many of the same British officials present at the signing of both documents — that Article 1's use of the term kawanatanga, as opposed to kingitanga, meant that the Maori were giving up their sovereignty?

Regardless, the question is now moot — New Zealand courts have long since given up trying to determine the "true" meaning of the Treaty. Now they — and the Waitangi Tribunal, which makes recommendations to the government concerning Maori grievances — simply apply the so-called "Treaty Principles":

The principle of government or the kawanatanga principle

Article 1 gives expression to the right of the Crown to make laws and its obligation to govern in accordance with constitutional process. This sovereignty is qualified by the promise to accord the Māori interests specified in article 2 an appropriate priority. This principle describes the balance between articles 1 and 2: the exchange of sovereignty by the Māori people for the protection of the Crown. It was emphasised in the context of this principle that ‘the Government has the right to govern and make laws’.

The principle of self-management (the rangatiratanga principle)

Article 2 guarantees to Māori hapū (tribes) the control and enjoyment of those resources and taonga that it is their wish to retain. The preservation of a resource base, restoration of tribal self-management, and the active protection of taonga, both material and cultural, are necessary elements of the Crown’s policy of recognising rangatiratanga. The Government also recognised the Court of Appeal’s description of active protection, but identified the key concept of this principle as a right for iwi to organise as iwi and, under the law, to control the resources they own.

The principle of equality

Article 3 constitutes a guarantee of legal equality between Māori and other citizens of New Zealand. This means that all New Zealand citizens are equal before the law. Furthermore, the common law system is selected by the Treaty as the basis for that equality, although human rights accepted under international law are also incorporated. Article 3 has an important social significance in the implicit assurance that social rights would be enjoyed equally by Māori with all New Zealand citizens of whatever origin. Special measures to attain that equal enjoyment of social benefits are allowed by international law.

The principle of reasonable cooperation

The Treaty is regarded by the Crown as establishing a fair basis for two peoples in one country. Duality and unity are both significant. Duality implies distinctive cultural development while unity implies common purpose and community. The relationship between community and distinctive development is governed by the requirement of cooperation, which is an obligation placed on both parties by the Treaty. Reasonable cooperation can only take place if there consultation on major issues of common concern and if good faith, balance, and common sense are shown on all sides. The outcome of reasonable cooperation will be partnership.

The principle of redress

The Crown accepts a responsibility to provide a process for the resolution of grievances arising from the Treaty. This process may involve courts, the Waitangi Tribunal, or direct negotiation. The provision of redress, where entitlement is established, must take account of its practical impact and of the need to avoid the creation of fresh injustice. If the Crown demonstrates commitment to this process of redress, it will expect reconciliation to result.

The Treaty Principles are important, and they do occasionally protect Maori interests. But their importance cannot obscure the fact that the Treaty itself still has no formal legal status in New Zealand, making Maori interests subject to the whims of Parliament. And that's no accident: taking the Treaty seriously would mean taking the Maori version of the Treaty seriously — and taking the Maori version seriously would mean that deals like Treelord would be the very tiny tip of a very large iceberg.

WorldPublicOpinion.org has released an interesting survey of world attitudes toward torture. Here is the summary of their findings:

A WorldPublicOpinion.org poll of 19 nations finds that in 14 of them most people favor an unequivocal rule against torture, even in the case of terrorists who have information that could save innocent lives. Four nations lean toward favoring an exception in the case of terrorists.

However, large majorities in all 19 nations favor a general prohibition against torture. In all nations polled, the number saying that the government should generally be able to use torture is less than one in five.

On average across all nations polled, 57 percent opt for unequivocal rules against torture. Thirty-five percent favor an exception when innocent lives are at risk. Just 9 percent favor the government being able to use torture in general.

The four publics that favor an exception for terrorists when innocent lives are at risk include majorities in India (59%), Nigeria (54%), and Turkey (51%), and a plurality in Thailand (44%).

Support for the unequivocal position was highest in Spain (82%), Great Britain (82%) and France (82%), followed by Mexico (73%), China (66%), the Palestinian territories (66%), Poland (62%), Indonesia (61%), and the Ukraine (59%). In five countries either modest majorities or pluralities support a ban on all torture: Azerbaijan (54%), Egypt (54%), the United States (53%), Russia (49%), and Iran (43%). South Koreans are divided.

[snip]

The survey presented respondents with an argument in favor of allowing the torture of potential terrorists who threaten civilians: "Terrorists pose such an extreme threat that governments should now be allowed to use some degree of torture if it may gain information that would save innocent lives." In fourteen nations, a majority or plurality rejected this argument in favor of the unequivocal view: "Clear rules against torture should be maintained because any use of torture is immoral and will weaken international human rights standards against torture."

The executive director of the company sees the results as extremely encouraging, but I'm not so sure that his enthusiasm is warranted. Yes, the overall trends are positive. But it's still a little unsettling that nearly 4 out of 10 people world-wide are willing to countenance torture in at least some circumstances, including 44% of Americans, and that nearly 2 out of 10 think it should be generally available to the government. (Who else do they want tortured? Shoplifters?) Even worse, the number of people who accept torture is generally on the rise:

Only India had even a modest plurality favoring an exception for terrorists in 2006. In the current survey three countries (India, Nigeria, and Turkey) have a majority supporting such exceptions, Thailand has a plurality and South Korea is divided.

Four countries included in both surveys show dramatic increases in support for allowing the torture of terrorists: India (from 32% to 59%), Nigeria (39% to 54%), Turkey (24% to 51%), and South Korea (31% to 51%). Substantial increases also occurred in Egypt (25% to 46%) and the United States (36% to 44%).

At the same time there have been equally dramatic increases among those favoring a complete ban on torture. Support has grown substantially in Mexico (rising from 50% to 73%), Spain (65% to 82%), China (49% to 66%), Indonesia (51% to 61%), Britain (72% to 82%), and Russia (43% to 49%).

On average, support for an exception has gone up six points while support for an unequivocal rule has gone up two points. Thus the net increase in favor of an exception is just four points.

As the summary notes, acceptance of torture is affected — unsurprisingly — by the distribution of terrorist attacks. Since the previous poll in 2006, three of the six countries in which acceptance has increased have experienced terrorist attacks (India, Turkey, South Korea) and four of the six in which it has decreased have not (Spain, Britain, Indonesia, and Russia).

I have blogged recently about the EU's encouraging -- if insufficient -- criticism of Italy's shameful persecution of its Roma population. On Friday, the Council of Europe added its two cents:

Europe's top rights body, the Council of Europe, on Friday voiced "deep concern" at a series of recent attacks against the Roma gypsies and immigrants and their treatment in Italy.

The attacks, the worst of which involved the torching by a local mob last month of a gypsy camp outside Naples have already drawn criticism from the European Union and from rights groups. Copycat attacks followed in other cities.

Police arrested several hundred 'undocumented' immigrants last month in a controversial series of raids on shanty towns across Italy.

"Roma and immigrants have been the subject of violent racist attacks and entire communities have been held responsible for criminal acts committed, or allegedly committed, by individuals from these communities," the Council of Europe's racism and xenophobia monitoring body (ECRI) said in a statement.

"In the context, ECRI particularly regrets the persistent racist and xenophobic discourse by some Italian politicians, even at the highest levels, and in the media," the statement continued.

It is difficult to overstate just how disgusting Italy's actions have become. The most recent plan is to kick Roma out of the country unless they can prove they have homes and jobs:

The new conservative government in Italy, led by prime minister Silvio Berlusconi vowed to clamp down on illegal immigration. Special Roma Gypsy commissioners have been appointed in several of the country's major cities.

Under a planned government decree, EU citizens - which would include Romanian Gypsies - must have adequate housing and regular incomes to stay in Italy for more than three months.

The decree would also make it easier to expel illegal immigrants.

"The Italian authorities are taking measure whose conformity with national and international human rights standards is questionable," said ECRI.

A survey earlier this month by Italian research institute Demos-Coop, showed eight out of ten Italians want Roma Gypsy camps dismantled.

A poll last month by Italian daily La Repubblica found that 68 percent of Italians want to deal with the "Roma Gypsy problem" by expelling all of them.

A few weeks ago, a Romanian Euro MP described Italy's actions as "clearly fascist." I bristled at the use of the word "fascist" at the time, but with each passing day the description becomes more accurate. The "Roma Gypsy problem"? "Special Roma Gypsy Commissioners"? Remind you of anything?

The planned decree is particularly perverse, of course, because Italian politicians are doing everything they can to ensure that the Roma don't have the adequate housing they would need to remain in the country. One example:

Local activists in the northeastern Italian city of Mestre and politicians from the anti-immigrant Northern League are protesting the construction of a settlement for Sinti Gypsies.

Northern League parliamentarian Corrado Callegari and local party councillor Alberto Mazzonetto have blocked access to the camp, preventing building from getting underway.

The protest began more than three weeks ago, when a small group of protesters started gathering daily at the entrance to the building site.

The protesters are demanding a plebiscite on the planned Sinti Gypsy settlement which will include houses and a caravan park. They have also staged protests at local Gypsy camps.

The local council intends to accommodate some 40 Sinti Gypsy families at the site, which will cost 2.8 million euros to build.

The Northern League claims the money should be spent on shelter for homeless Italian citizens from the Mestre-Veneto area who have asked the local council for help. The Sinti Gypsies should not get preferential treatment and must wait their turn to be housed, the Northern League argues.

Bowing to pressure, the mayor of Venice, Massimo Cacciari had halted building work at the planned Sinti Gypsy settlement, but has promised this will soon re-start.

"Preferential treatment"? Are they kidding? Were that it were so!

NOTE: Media descriptions of the Roma's plight in Italy continues to astound and depress me. The final article mentioned above contains this little gem: "The origins of the Sinti Gypsies are uncertain, but they may have come from Pakistan's southeastern Sindh province." So what? What does that have to do with the story, given that the article itself notes that nearly half of Italy's Roma are Italian citizens? Is the point simply to make the Roma seem more Other -- and more dangerous, given that Pakistan is in the scary Middle East?

No, Virginia, being unanimously acquitted by an international tribunal's trial and appeals chambers doesn't mean very much:

Belgium has confirmed that it was investigating Emmanuel Bagambiki, former Governor of Cyangugu during the 1994 genocide, who was acquitted by the International Criminal Tribunal for Rwanda (ICTR) and who is sought by Rwanda, reports Hirondelle Agency .

"The federal prosecutor is looking at the [Bagambiki's] extradition request and that there is an arrest warrant issued against him [by Rwanda]','said Lieve Pellens spokesperson of the prosecutor.

However, he hinted that Belgium and Rwanda, for the time being, do not have an extradition agreement, but affirmed that Investigations were underway against the former Rwandan official, who is living in Belgium with his family.

Following his final acquittal by the ICTR appeals court, on 8 February 2006, for crimes of genocide and crimes against humanity, Rwanda decided to prosecute the former Governor for rape, for which he was not tried by the UN tribunal.

On 10 October 2007, the Court of First Instance of Rusizi, his native region, sentenced Bagambiki in absentia to life in prison for rape and incitement to commit rape.

A source told Hirondelle that the federal prosecutor, Phillippe Meire, had recently travelled to Rwanda to follow up on the judgement.

If extradition was rejected, Belgium could decide to prosecute Bagambiki itself if there was any convincing evidence.

Rwanda's attempt to get their hands on Bagambiki is unlikely to succeed, given that the European Convention on Extradition prohibits extradition when the request is based on a conviction obtained in absentia. It is also unlikely that Belgium would prosecute Bagambiki for the rapes itself, because -- as I have explained elsewhere -- the rape charges are based on the same modes of participation (direct participation and command responsibility) that the ICTR unanimously rejected. Why, then, is Belgium continuing this legal charade? There seems to be only one answer: it is trying to punish Bagambiki for seeking aslyum -- and ultimately receiving it by court order, over government protests -- in Belgium.

Charades like this make a mockery of international criminal justice -- William Haynes writ large: "We can't have acquittals. We've been holding these guys for years. How can we explain acquittals? We have to have convictions."

Courtesy of Toast.com, the quiz consists of 30 questions -- 20 drawn from the U.S. citizenship test and 10 harder "curveballs." 24 is considered the minimum passing score; I scored, much to my delight, a 26. Can you do better?

Hat-Tip: Americablog.