A Treaty between the Aboriginal Peoples of Australia and the Government of Australia from an International Law Perspective
Speech deliverd by Ivan Shearer, Challis Professor of International Law, The University of Sydney at a seminar hosted by the Aboriginal and Torres Strait Islander Social Justice Commissioner and the International Law Association, 10 September 2002.
1. In what follows I have not ventured into the history of proposals for a treaty between the aboriginal peoples of Australia and the Government of Australia. Others here will know this much better than I. Nor do I wish to suggest in detail what such a treaty might contain, if it were possible to bring it about. My purpose is to address the nature of treaties in international law, the possibility of treaties between state and non-state parties, and some contemporary forms of treaty-making in the international arena that might offer some helpful models or analogies.
2. In international law a treaty is normally understood to be "an international agreement concluded between States in written form and governed by international law". The Vienna Convention on the Law of Treaties, concluded in 1969, and to which Australia and most other states are parties, so defines the term in article 2 (1) (a). The Vienna Convention is also regarded as an authoritative statement of customary international law. That Convention, however, expressly recognises that there can be other forms of agreement, such as between states and "other subjects of international law", the legal force of which is to be determined by applicable rules of international law independent of the Convention.
3. There can also be forms of agreement that are not governed by international law. "Intention to create legal relations" is as much a formal yardstick of characterisation in international law as in domestic law. There can be agreements that are binding at the political level but not at the legal level. In the practice of Australia and other countries increasing use is made, in contemporary international relations, of the "Memorandum of Understanding" as a mode of agreement. This mode produces an agreement of less than treaty status. It is often used in the conclusion of development assistance agreements or of transitory agreements relating to the disposition of armed forces. In these cases it offers a more flexible form of agreement, allowing for easier change in accordance with circumstances. Australia regularly uses this form of agreement also in its relations with Taiwan, but in this case by reason of the fact that it does not recognise Taiwan as a State having a separate international personality from China. Memoranda of Understanding are treated as binding at the political level but not enforceable in international law.
4. What are examples of "other subjects of international law" which are recognised as having the capacity to enter into international agreements? The prime example is that of the United Nations, which was recognised as having the capacity to enter into treaty relations with states in an advisory opinion of the International Court of Justice in 1949. This capacity is also possessed by certain international organisations, especially the Specialised Agencies of the United Nations. Beyond these examples it cannot be stated that there is a generally recognised capacity of non-state entities to enter into treaty relations. It is a question of recognising international personality as the basis of the power to enter into treaty relations. States in the post-Westphalian order have been extremely reluctant to concede such personality to entities other than states. A small, particular exception is the recognition of the right of an authority representing a people engaged in an armed struggle against a State Party in exercise of its right of self-determination to make a declaration that it will apply the Geneva Conventions and Additional Protocol I in relation to the conflict. [1] That would have to be regarded as a special case, dictated by humanitarian concerns.
5. Another important facet of the post-Westphalian order also comes into play in assessing claims to international personality. There is a profound reluctance, indeed aversion, of states to concede any measure of international personality to the various peoples constituting their own populations. The so-called "treaties" concluded in the past between the colonial powers and indigenous peoples in order to obtain cessions of territory were generally held to be valid acts of the ceding indigenous sovereign in international law but, once title to the territory had thus passed to the acquiring state, continuing relations between the conqueror and the subject peoples came to be regarded as subject only to domestic law. [2] This is true even in New Zealand, where the Treaty of Waitangi is regarded as having status under national law only. There is no current willingness among states to endorse the notion of separate international personality among their peoples, since that could lead to the endangering of territorial integrity and to ultimate dismemberment. The Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, adopted by consensus by the General Assembly of the United Nations on 24 October 1970, included an interpretative paragraph on the right of self-determination of peoples. It stated that:
"Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour."
6. So what of a "treaty" between the aboriginal and non-aboriginal peoples of Australia? It is clear that the word "treaty" carries with it the implications of (a) an intention to create legal relations between the parties governed by international law; and (b) that the parties each possess a separate international personality. I frankly cannot see any government of Australia willing to negotiate any form of agreement carrying these implications.
7. What I can foresee is a form of agreement between the aboriginal and non-aboriginal peoples of Australia that has political, preferably constitutional, status in the Australian legal order. A word should be chosen for such an instrument free from associations that give rise to the twin bogeys of sovereignty and international law. Ideally it should be a unique word, not associated with any other situation. I have yet to hear a better term than Makaratta, which was proposed more than 20 years ago. But perhaps a more acceptable term will emerge. It is not the name that matters, but what it conveys as a truthful and potent vehicle for setting black-white relations on a positive course. International law is not entirely irrelevant, however. It can provide useful analogies and precedents for such an instrument.
8. If I can be allowed a comment as a distant observer of, but not as a participant in, the debate of the past 20 years, I have the impression that too much has been proposed for inclusion in what I shall continue to call "the treaty". It seems as though the participants from all sides have envisaged a lengthy and comprehensive text that would settle all questions. In my opinion that road will lead to inevitable frustration. Moreover, can or should all such questions be settled at one particular point of history? What I would suggest is a short and simple instrument that creates a framework [3] for the future course of black-white relations in Australia and for work on an ongoing basis on particular questions. Such a treaty would contain -
(a) a statement of reconciliation and of the desire to make a new start in black-white relations;
(b) a statement of agreed general principles;
(c) an identification of the areas in which future negotiations will take place with a view to the conclusion, from time to time, of particular subsidiary instruments or mechanisms; and
(d) provision for the creation of a body to implement the treaty.
I would hope also that the treaty, at least in its initial parts, would contain "constitutional poetry" of an inspirational kind.
9. A number of examples of the kind of treaty I have in mind exist in the international sphere. They are often called "framework conventions". They typically begin with preambular paragraphs that identify the problems and objectives and assert a common resolve to work towards their resolution and attainment. They then proceed to commit the parties to co-operation in a concerted effort to achieve the objectives of the Convention. The approach is programmatic rather than definitive. No party commits itself to precise and binding obligations. What is established by the convention is an ongoing process, not a final settlement. The legal obligation arising from such conventions may consist, in the final analysis, only of the obligation to demonstrate good faith in engaging in the forms of co-operation set out in the convention. [4] But good faith should not be seen as a obligation devoid of content; it is an important principle of both international law and national law in its own right.
10. There are a number of examples. I shall mention two of them.
(a) The Helsinki Final Act on Security and Co-operation in Europe, 1975. All the states of Europe, including the Soviet Union, and the United States and Canada, signed this instrument. The name itself throws doubt on its status as a legal binding agreement, since that term has traditionally been used for a statement of the outcome of a conference rather than a treaty text. Indeed the Helsinki Final Act itself explicitly states that it does not qualify as a treaty or convention required to be registered under article 102 of the Charter of the United Nations. However, the commitment of the parties to act in good faith is emphasised in the last paragraph of the document, where the signatories state that they are "mindful of the high political significance which they attach to the results of the Conference" and where they declare "their determination to act in accordance with the provisions contained in the above texts."
The Final Act then proceeds to identify the areas in which the parties will co-operate with a view to achieving desired outcomes. These areas are termed "baskets". Basket I confirms ten general principles of relations between the parties based on their obligations under the UN Charter. It then sets out guidelines for the establishment of confidence-building measures in the field of security, including the giving of advance warning of military exercises and the exchange of observers. Basket II relates to co-operation in the field of economics, science, technology, and of the environment. Basket III relates to co-operation in the humanitarian and other fields. These other fields are identified as human contacts, information, culture, and education. The Fourth, and final, Basket establishes a continuing process of the Conference on Security and Co-operation in Europe (CSCE) to verify compliance with the commitments of the participating states. This has now flowered into an organisation, called the OSCE, which has played a significant part in recent European events, such as the break-up of the former Yugoslavia.
(b) The second example has been much in the news of late. It is the United Nations Framework Convention on Climate Change, 1992. The Convention states an agreed objective in article 2 and a set of principles in article 3. Article 4 on "commitments" is in the form of pledges of co-operation and statements of aspiration to be followed within the framework. The actual setting of specific targets is left to subsequent protocols, especially the Kyoto Protocol of 1998. Even that Protocol contains elements of flexibility, including recognition of the different capacities of developed and developing economies.
11. Some commentators decry such instruments as "soft law". They cannot conceive of law as anything other than "hard" and enforceable by inflexible legal processes backed up by sanctions. Such an attitude ignores the realities of international relations and - by extension - the realities of sensitive national political issues, such as the situation of aboriginal Australians. In fact, so-called soft law has produced outstandingly successful results in the first example, and moderately successful results in the second. Even in the second example, the great force of the dynamics of the process set in train is evident in the defensive postures of those states that are reluctant to commit themselves to specific emission targets. They may shy away from specific targets but they dare not disengage themselves from the process. In the end an accommodation will be reached.
12. In this brief paper I have stressed ideas from the international sphere that I think could be fruitfully employed in the search for a model treaty between aboriginal and non-aboriginal Australian citizens. They include the model of a framework agreement, the achievement of reconciliation through an ongoing process, gradual and measured progress in particular fields, confidence building, and good faith.
1. Additional Protocol I (1977) to the Geneva Conventions of 1949, article 96(3).
2. See e.g. the decisions of the Privy Council in In re Southern Rhodesia [1919] AC 211, and in Hoani Te Heu Heu Tukino v. Aotea District Maori Land Board [1941] AC 308, and the arbitral award in the Delagoa Bay case (1875), Moore, J.B., International Arbitrations, 4984. See generally G. Alfredsson, "Treaties with Indigenous Populations" in Encylopedia of International Law Vol.2, 951-953.
3. This notion has been suggested previously also by the Final Report of the Council for Aboriginal Reconciliation to the Prime Minister and the Commonwealth Parliament, 7 December 2000.
4. The duty to co-operate in good faith under the World Heritage Convention was regarded by the High Court in the Tasmanian Dam case to be a sufficient obligation - if obligation were needed - to enliven the external affairs power of the Constitution: Commonwealth v. Tasmania (1983) 46 ALR 625, per Mason J. at 697-700, Brennan J. at 771-779, and Deane J. at 805.
Last updated 17 September 2002.
