American Indian Treaties and Modern International Law
St. Thomas Law Review
One of the cardinal principles of international law, if not the rock on which it stands, is the notion that nation-states are bound to keep their word. Pacta sunt servanda' has been hailed as the "basic norm" of the law of nations,' the foundation of all prescription in an essentially coarchical, consent-based and consent-driven system. The principle, moreover, predates, and transcends, modem international law. Thinkers throughout the ages have emphasized its fundamental role in any legal system. They include Socrates, Plato, Cicero, Ulpian and the fathers of the Church, St. Augustine and St. Thomas Aquinas. One's word is one's bond. All the more so if one has gone on to pledge it in the context of a formal agreement. Since this obligation is of such a basic nature, one will not find it restated in human rights covenants, nor will it commonly be reiterated in minority rights conventions, or any other agreement between States. Why, then, Article 36 of the 1993 Draft Declaration on the Rights of Indigenous Peoples? The provision reads, in pertinent part: 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. Why such a reminder of the basics in the budding bill of indigenous rights? Are "Indian treaties" different? Most probably, the reason for such provision has to do with history, with the legacy of human deprivations. As the human rights agenda arose from the ashes of the Holocaust, the "Trail of Broken Treaties" accompanying the conquest, "pacification" and subjugation of indigenous communities around the globe cries out for a reminder that even as a conquering state, your word still is your bond. Let us take a closer look at the historical context.
Siegfried Wiessner, American Indian Treaties and Modern International Law, 7 St. Thomas L. REV. 567 (1995).