Opinio Juris http://www.opiniojuris.org/ en-us 2008-06-27T06:06+00:00 An Important Maori Land Settlement -- But Where's the Treaty Itself? http://www.opiniojuris.org/posts/1214543775.shtml The BBC reports that the New Zealand government and seven Maori tribes have entered into an historic agreement concerning Maori ownership of... Kevin Jon Heller 2008-06-27T06:06+00:00 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.]]> China and Japan Agree (Sort of) to Jointly Develop Disputed East China Sea http://www.opiniojuris.org/posts/1213797238.shtml There is a lot of diplomatic-speak here, and agreements to agree to work at some point in the future and how there is no prejudice to their legal positions, etc. but... Julian Ku 2008-06-18T16:06+00:00 this non-agreement-agreement is a promising sign for resolving various territorial disputes between China and Japan. Another reminder of how useful non-binding international agreements can be.


China and Japan, through consultations on an equal footing, reached principled consensus on the East China Sea issue, Chinese Foreign Ministry spokeswoman Jiang Yu made the announcement here Wednesday.

The announcement included the following three parts:

I. Cooperation Between China and Japan in the East China Sea

In order to make the East China Sea, of which the delimitation between China and Japan is yet to be made, a "sea of peace, cooperation and friendship", China and Japan have, in keeping with the common understanding reached by leaders of the two countries in April 2007 and their new common understanding reached in December 2007, agreed through serious consultations that the two sides will conduct cooperation in the transitional period prior to delimitation without prejudicing their respective legal positions. The two sides have taken the first step to this end and will continue to conduct consultations in the future.


]]> ICJ Issues Judgment in Malaysia/Singapore Case http://www.opiniojuris.org/posts/1211906996.shtml On Friday, the ICJ issued its judgment in Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore). A summary sent by the ICJ stated that... Chris Borgen 2008-05-27T16:05+00:00 Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore). A summary sent by the ICJ stated that
it had found by 12 votes to four that Pedra Blanca/Pulau Batu Puteh, a granite island in the Straits of Singapore on which a lighthouse stands, belongs to Singapore and has done so since at least 1980, when the dispute between the two countries crystallized.

In the case of Middle Rocks, which consist of a group of rocks that are permanently above water, the ICJ … ruled 15 to one that it belongs to Malaysia.

The court also noted that South Ledge, a nearby low-tide elevation, falls within the apparently overlapping territorial waters generated by Pedra Blanca/Pulau Batu Puteh and by Middle Rocks. Given that the two countries have not asked the court to draw the line of delimitation, the judges said, by 15 to one, that sovereignty belongs to the State in the territorial waters of which it is located.
The press release, including a detailed summary of the opinion, is here and the full opinion available here.]]> John Boonstra on R2P and Burma http://www.opiniojuris.org/posts/1210892280.shtml I had contemplated weighing in on commentators' unfortunate tendency to equate the Responsibility to Protect doctrine with humanitarian invasion, but John Boonstra at UN Dispatch beat me to it. Here's... Kevin Jon Heller 2008-05-15T22:05+00:00 UN Dispatch beat me to it. Here's a snippet:
First, by and large, the R2P doctrine has been misunderstood or misrepresented in calls to "invade" Burma. R2P is often implied to boil down to a simple equation: if a government is unable or unwilling to adequately protect its citizens, then the international community has a right to forcibly intervene to protect these people. The first part of this conditional is accurate, but the second is a gross oversimplification. R2P does not prescribe invasion any more than the Constitution of the United States mandates impeachment. Military intervention is only one component of the R2P framework, and one of last resort, at that; it is only to be undertaken when a series of specific conditions are met, ensuring that intervention is justified, well-intentioned, practical, authorized by the proper authority (i.e., the UN Security Council), and will not cause more harm than good.

Wielding R2P as a Trojan horse for invasion and regime change, as Robert Kaplan seems to desire, is harmful to the integrity and future viability of the concept, as well as to the more pressing concern of alleviating the Burmese people's suffering.
The whole post is well worth a read. It's here.]]> Is It Time to Invade Burma? (Is It Time to Invade Georgia?) http://www.opiniojuris.org/posts/1210445127.shtml The first part of this post's title is also the title of a new article at Time.com. (Note: on CNN.com, they title the article "Time to Invade Myanmar?")... Chris Borgen 2008-05-10T18:05+00:00 a new article at Time.com. (Note: on CNN.com, they title the article "Time to Invade Myanmar?")

And so begins the latest iteration of the humanitarian intervention debate. After a recap of the situation in Myanmar, the article notes:
...it's hard to imagine a regime this insular and paranoid accepting robust aid from the US military, let alone agreeing to the presence of US Marines on Burmese soil — as Thailand and Indonesia did after the tsunami. The trouble is that the Burmese haven't shown the ability or willingness to deploy the kind of assets needed to deal with a calamity of this scale — and the longer Burma resists offers of help, the more likely it is that the disaster will devolve beyond anyone's control. "We're in 2008, not 1908," says Jan Egeland, the former U.N. emergency relief coordinator. "A lot is at stake here. If we let them get away with murder we may set a very dangerous precedent."

That's why it's time to consider a more serious option: invading Burma. Some observers, including former USAID director Andrew Natsios, have called on the US to unilaterally begin air drops to the Burmese people regardless of what the junta says. The Bush Administration has so far rejected the idea — "I can't imagine us going in without the permission of the Myanmar government," Defense Secretary Robert Gates said Thursday — but it's not without precedent: as Natsios pointed out to the Wall Street Journal, the US has facilitated the delivery of humanitarian aid without the host government's consent in places like Bosnia and Sudan.
The article concludes that, if current attempts at assistance fail,
"It's important for the rulers to know the world has other options," [Jan Egeland, a former UN emergency reloief coordinator] says. "If there were, say, the threat of a cholera epidemic that could claim hundreds of thousands of lives and the government was incapable of preventing it, then maybe yes — you would intervene unilaterally." But by then, it could be too late. The cold truth is that states rarely undertake military action unless their national interests are at stake; and the world has yet to reach a consensus about when, and under what circumstances, coercive interventions in the name of averting humanitarian disasters are permissible. As the response to the 2004 tsunami proved, the world's capacity for mercy is limitless. But we still haven't figured out when to give war a chance.
I am of two minds when it comes to humanitarian intervention. Cases such as Myanmar may be the less difficult cases--situations where there is a threat of widepread disease or famine (let alone the physical injuries and other forms of suffering caused by the storm) and a government is either incapable or uninterested in actually doing what needs to happen to save its own citizens. I'm not saying that that is an easy case for humanitarian intervention, just that it is not as hard as other examples that are more politically ambiguous, such as intervening because of civil strife or sectarian violence.

Turning such a political decision into a legal rule is fraught with dangers. What do we do if the Russian intervene militarily in Georgia, on the pretext that they are protecting Russian passport holders? What of Turkey's intervention in Northern Cyprus in the 1970's on the argument that it was protecting Turkish Cypriots from violence? As I've written regarding Kosovo, the law of unintended consequences is a mighty force to reckon with.

The people of Myanmar desperately need help and they need it now. Perhaps intervening without the consent of their government will be the necessary and moral thing to do. I don't know enough about the facts on the ground to judge that. But, even if various states do undertake such an action, they should think very carefully about proclaiming the existence of a legal principle favoring humanitarian intervention.




]]> Map Art http://www.opiniojuris.org/posts/1209141586.shtml Here is a sample of some of the wonderful map art of Susan Stockwell:... Roger Alford 2008-04-25T16:04+00:00 Susan Stockwell:

Fleece England...



Rubber Africa...



Coffee Filter South America...



Tea bag China...


]]> Free Speech at the Olympics http://www.opiniojuris.org/posts/1208193816.shtml Free speech at the Beijing Olympics is becoming a hot topic. IOC President Jacques Rogge held a press conference last week taking a firm line restricting all political speech anywhere... Roger Alford 2008-04-14T17:04+00:00 press conference last week taking a firm line restricting all political speech anywhere at an Olympic site.


Rule 51.3 of the Olympic Charter provides that “no kind of demonstration or political, religious or racial propaganda is permitted in any Olympic sites, venues or areas," a principle that has been in the Olympic Charter for more than 50 years in order to preserve the universality of the Games. "The application of this regulation is common sense," explained Rogge, adding that without this rule, Olympic competitions and ceremonies could be used as a stage for all different kinds of political statements about armed conflicts, regional differences of all kind, religious disputes and many others.

"If athletes genuinely want to express their opinion, that's fine," Rogge continued. "But let's not forget, there is also the right not to express an opinion. Athletes should feel no moral obligation to speak out. They deserve the right to focus on their preparations and should not be made to feel obliged to express themselves if they do not wish to. The IOC and the National Olympic Committees have the duty to protect them from any kind of pressure. In any case, I do not expect there will be many incidents (of breach of rule 51). Athletes are mature and intelligent people. They will know what they can say or not say. If they have doubts, the IOC and the NOCs are here to guide them."

I have mixed feelings about this issue. I would strongly oppose any boycott of the Olympic games, but I am troubled by the prospect of a prior restraint on political speech at any Olympic venue or site. What qualifies as a “demonstration” or “political propaganda”? Can an athlete walk around the Olympic village with a yellow ribbon attached to his shirt to symbolize his support for a Free Tibet? Can athletes discuss with reporters (or publish blog posts from their Olympic village apartments) about anything political, such as China’s human rights record, the great firewall of China, Darfur, or its lax intellectual property record? And if free speech is restricted in the Olympic areas, will there be free speech zones somewhere at or near the Olympics, as was the case at the 2002 Olympics in Utah?

]]> O What a Rogue and Peasant State Am I! http://www.opiniojuris.org/posts/1205418866.shtml [This was cross-posted over at Huffington Post]... Roger Alford 2008-03-13T14:03+00:00 cross-posted over at Huffington Post]

Now I am alone. O what a rogue and peasant slave am I! Is it not monstrous that this player here, But in a fiction, in a dream of passion, Could force his soul so to his own conceit, That from her working all his visage wann'd, Tears in his eyes, distraction in's aspect, A broken voice, and his whole function suiting, With forms to his conceit? And all for nothing!... Yet I, a dull and mudd-mettled rascal, peak... Am I a coward? Who calls me villain?... Remorseless, treacherous, lecherous, kindless villain! O, vengenance! Why, what an ass am I!

Hamlet, Act 2, Scene 2

In the famous second soliloquy of Hamlet, Hamlet is overwhelmed by a feeling of worthlessness and self-pity. He stands alone, grieving his inaction. He wallows and rambles in mindless self-doubt, remonstrating against his own failure. In his mind, he is a pitiful and weak rogue, lacking the gall to live up to his commitment to avenge his father's murder. He makes plans to test whether his revenge is justified, but his actions do not help him achieve his desired end. He finds himself a miserable, melancholy knave.

This scene from Hamlet came to mind yesterday when I attended a fascinating conference at UCLA on the topic of "rogue states." After listening to the discussion, I could not help but pity (and fear) the poor rogue state. They are full to the brim with self-pity, and self-doubt, utterly consumed by their weakness.

Exhibit One was North Korea. The former Thai Foreign Minister, Kantathi Suphamongkhon, presented a wonderful series of vignettes of his visits to North Korea that underscore the pitiful position of poor Pyongyang. The North Koreans display a room full of gifts to the deceased Kim Il-sung to show foreign dignitaries that a nation without friends has so many friends. It is poor and desperately isolated. It treats every issue as an insult, and every diplomatic overture is a potential provocation. If one focused on this abiding sense of insecurity, it is clear that labeling it a member of the "axis of evil" was a profound mistake. It only fortified their sense of weakness and vulnerability. For North Korea, the lesson of Iraq is "We are next, unless we appear strong." Nuclear weapons mollified their insecurities.

Exhibit Two was Iran. Dalia Kaye of RAND emphasized that Iran does not pose a significant conventional military threat to its neighbors, although its assymetric capabilities (such as ballistic missile development) are a concern. Iran is not the former Soviet Union. It is a weak nation attempting to exert political and ideological influence in the region. Unfortunately, the Bush Administration eliminated two of Iran's greatest enemies with its wars in Afghanistan and Iraq. And yet Iran still has precious few allies abroad and remains hugely unpopular at home. Therefore, we should move away from the rhetoric of regime change and unilaterally tone down our rhetoric on Iran. After all, democracy promotion is not the same thing as regime change. Our goals should be to promote democratic ideals and the rule of law from within.

Pakistan, by all accounts, is a special case. Former Pakistan Brigadier General Feroz Hassan Khan described his country as a deeply troubled one. National survival has been at the core of its mission for its entire existence. It may not be a rogue state, but it is a distrusted and sanctioned ally. It is not an enemy, but an enigmatic and disenchanted ally. When Pakistan cracks down on democracy and liberalism, it feels it must do so because it thinks the very survival of the state is at issue. It generally acts out of weakness and fear. It cannot be both popular and tough, so it opts for the latter when expediency so requires, and garners worldwide condemnation. Frequent terrorist attacks and disputed borders only add to its sense of insecurity.

What was the take-away message for the next administration? Don't feed the insecurities of rogue states. Stop calling them names. The label "rogue state" mistakes the essence of the state for its actions. These nations are in a troubled and precarious state of mind. They are full of self-doubt, prone to rash action, and easily insulted.

If there is one thing worse than a rogue state, it is a failed state. We know how the tragedy of Hamlet ended. When the mad Hamlet's doubts were eventually confirmed, he achieved his revenge and died in the process. Our goal should be to change the ending.
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