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161
F.W. Guest Memorial Lecture: August 22nd, 2005
The Half-Life of Treaties: Waitangi, Rebus Sic Stantibus Jeremy Waldron*
I did not know Frank Guest; Peter Sim was Dean of Law when I studied here. But I understand that it was Professor Guest (along with Professors Dan Taylor and Alan Musgrave of the Philosophy Department) who set up arrangements for the joint study of jurisprudence and philosophy that I also followed when I was at Otago in the 1970s. Those arrangements were of immeasurable benefit to me, and I offer this lecture to his memory as a way of saying "Thank you."
The question I want to address this evening is about the longevity and resilience of treaties. How should we think about a treaty that is 165 years old? Do treaties have a half-life, like a radioactive isotope? Do they have sell-by dates?
1. John Stuart Mill
One of my favorite philosophers is John Stuart Mill. Not a lot of people know that Mill wrote an article on "Treaty Obligations" in the Fortnightly Review of December 1st 1870. In that article, he said it would be better, on the whole, if "nations [were] to decline concluding any treaties except for limited periods." He wrote: "Nations cannot rightfully bind themselves ... beyond the period to which human foresight can be presumed to extend," because of "the danger which, to some extent always exists, that the fulfilment of the obligation may, by change of circumstances, become either wrong or unwise."1 Something similar is expressed in Mill's private letters. "No treaty is fit to be perpetual," Mill wrote in a letter to a Mr. Leonard Courtney, two weeks before the Fortnightly Review article appeared.2
Mill was trying to cool down what he regarded as "the insane clamour for war"3 that arose out of Russia's unilateral repudiation of the punitive provisions of the Treaty of Paris of 1856, which had sought, in the wake of the Crimean
University Professor in the School of Law, Columbia University, New York. I owe a huge debt to Professor Campbell McLachlan for discussion of these issues. Thanks also to my Columbia colleagues Jose Alvarez and Gerald Neuman for some help with these ideas. A very early version of this lecture was presented at the fourth British World Conference, University of Auckland, July 16,2005; I am most grateful to Jamie Belich, Tomas Kennedy-Grant, Paul McHugh, J.G.A. Pocock, Andrew Sharp, and Te Maire Tau for comments on that occasion. No one mentioned here - except me - is responsible for the errors in what follows.
3 Mill, Letter to W.T. Thornton, 21 November, 1870, ibid., p. 282.
162 Otago Law Review (2006) Vol 11 No 2
War, to demilitarize the Black Sea.4 In 1870, Russia complained that circumstances had changed since 1856: the emergence of a new Roumanian state and incursions into the Black Sea by other naval powers meant that it could no longer regard itself as bound by the provisions of this treaty banning a Russian naval presence in these waters. The Turks were furious and fearful, and the British were outraged.5 (According to McNair's Law of Treaties, the British were always being outraged in the nineteenth century by proposals to repudiate binding treaties.)6 The outrage was hardly diminished by the insouciant comment of the Russian minister, Baron Brunnow, who said: "In our time, treaties rarely live to a great age."7 There was a lot of bluster and a call for war, and that was what Mill was trying to mollify. He condemned the Russians for their unilateralism, on the one hand, but he insisted nevertheless that they had a point so far as the obligations of the treaty were concerned. The incident fizzled out, as these things do, at a conference in London, which issued a rather unconvincing declaration reaffirming the principle that pacta sunt servanda (agreements must be kept) and condemning all unilateral denunciations of treaties, but quietly agreeing nevertheless to give the Russians more or less what they wanted.
"No treaty is fit to be perpetual." "In our time, treaties rarely live to a great age." Is this how we should think about treaties generally, even the ones that are near and dear to us? Thousands of treaties have been concluded over the course of human history; most just fade into desuetude after a while. When I was a youngster, demonstrating against New Zealand's involvement in the war in Vietnam, the Prime Minister Keith Holyoake used to talk about SE ATO (South East Asian Treaty Organization). Who remembers SEATO any more?8 (Who remembers Keith Holyoake?)
There is a Latin tag for the doctrine that treaties are not required to survive all the changes that time has wrought, the doctrine that parties may be freed from their treaty obligations when things change in some fundamental relevant respect. It is called the principle (sometimes the "clausula") of rebus sic stantibus - "while things stand thus."9 And this is what I want to explore in my comments today.
Bederman, supra note 4, at p. 2.
SEATO is usually cited as having fallen into desuetude after a number of countries withdrew from it. (It was formally wrapped up in 1976.) See George Walker, "Anticipatory Collective Self-Defense in the Charter Era: What the Treaties have Said," (1998) 31 Cornell International Law Journal 321, at p. 376. It fell into desuetude. The full doctrine is "conventio omnis intelligitur rebus sic stantibus," meaning literally "every treaty is understood by the things then standing." See Robert Phillimore, Commentaries Upon International Law Vol. 2 (Butterworths, 1882), p. 114.
The Half-Life of Treaties: Waitangi, Rebus Sic Stantibus 163
2. The Treaty of Waitangi
"No treaty is fit to be perpetual." I wonder if I am making anyone nervous, for I intend my discussion of rebus sic stantibus to be applied - at least speculatively - to the Treaty of Waitangi.
It is intended as a sort of thought-experiment. I want to entertain the applicability of rebus sic stantibus to the Treaty of Waitangi, not to argue directly for the abandonment of the Treaty or to bolster anyone's case for denouncing the Treaty, but just to try seeing the Treaty in a somewhat different light.10
For me, the exploration of the half-life of the Treaty of Waitangi fills a gap in some of the other work I have done on indigenous issues and on historic injustice. In a series of papers since 1992,u I have explored what I call the supersession of historic injustice, the possibility that injustice that happened in the past might be overtaken by events, when changed circumstances mean that something which was condemned by principles of justice in (say) 1860 turns out to be permitted or even required by the same principles of justice in the circumstances that obtain (say) 150 years later. That has been my argument. But I always reserved the question of whether the requirements of justice, with respect to indigenous peoples, might be made immune to this effect by virtue of their embodiment in a treaty. Now I want to face up to that question directly.
So how would this principle of international law - rebus sic stantibus - apply to the Treaty? A number of commentators insist that (whatever it once was) Waitangi is not to be understood now as an international treaty, amenable to
Note how in each case the treaty is formed in a certain situation. Now that this situation is no longer applicable, the treaties are irrelevant. ... A treaty may be terminated by reliance on the principle rebus sic stantibus ("things remaining that way"), that is, when the state of affairs assumed by the signatory parties (when they signed the treaty, and therefore the real basis of the treaty), no longer exists, and a substantial change in conditions has taken place. Is this not the case?! ... The Treaty of Waitangi is a document for a specific time and place. The time is long passed and the place (19th century New Zealand) is now gone.
164 Otago Law Review (2006) Vol 11 No 2
international law doctrine.12 They say the Treaty now operates as an intra-societal charter rather than an agreement between sovereigns on different sides of the world.13
There is evidently some truth in this. Waitangi was one of those compacts which, if successful, changes by its own operation the status of those to whom it applies.14 It began life as an international treaty: Benedict Kingsbury and others have shown there is no doubt that it was regarded in that light by the British and by other interested nations (France, Russia, and America, for example) at the time that it was executed.15 (The doctrine, enshrined in McNair's Law of Treaties, that indigenous peoples do not have the capacity to enter into treaties in the strict sense is a later concoction.)16 But it ceased to be a treaty between nations as a result of its intended effect. As Professor Brownlie points out,
That question was expressly reserved by Cooke P. in New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641, at 655: "[O]ther issues, however, important and interesting in themselves, are probably better left free of crumbs of dicta. For example, whether the Treaty of Waitangi has a status in international law; what are the principles for interpreting international treaties;... These are big questions, not sensibly to be answered by an individual Judge's impressions based on argument and materials touching but not closely focused on them." J.G. A. Pocock, "Waitangi as Mystery of State," in Duncan Ivison, Paul Patton and Will Sanders (eds.) Political Theory and the Rights of Indigenous Peoples (Cambridge University Press, 2000), 25, at p. 26, puts it this way: "The Treaty of Waitangi is now considered fundamental, in the sense that it precedes and establishes the national sovereignty; it therefore furnishes a basis on which Maori may make claims against that sovereignty, reminding it that it is conditional upon fulfillment of a treaty that made promises to the Maori that have not always been kept (this is to put it mildly). The Treaty is not used to delegitimize sovereignty, but as a reminder of its conditionality."
In this regard it is like the Articles of Confederation of the United States and the ratification of the U.S. Constitution in 1787, which (as the events of the 1860s proved) changed the states from sovereign agents, who could enter into and withdraw from a compact, to a situation in which, in the words of Abraham Lincoln's first inaugural address, "no State upon its own mere motion can lawfully get out of the Union." Abraham Lincoln, "First Inaugural Address" (1861), in his Speeches and Writings 1859-1965 (The Library of America, n.d.), 215. The claim (by Kenneth Minogue, for example, in Waitangi, Morality and Reality (New Zealand Business Roundtable, 1988), p. 11) that Waitangi was not a treaty has been decisively refuted. In fact it was regarded as such by the British, by the French, and by the Americans at the time. See Benedict Kingsbury, "The Treaty of Waitangi; Some International Law Aspects," in I.H. Kawharau (ed.) Waitangi: Maori and Pakeha Perspectives (Oxford University Press, 1989), 121, at pp. 121-6. And, as Ian Brownlie pointed out in his 1991 Robb Lectures, the fact that later doctrines developed maintaining that "Native Chiefs and Peoples" did not have treating-making capacity is irrelevant to that understanding: see Ian Brownlie, Treaties and Indigenous Peoples (Oxford University Press, 1992), pp. 8-9. See also James Tully, Strange Multiplicity: Constitutionalism in an Age ofDiversity (Cambridge University Press, 1995), pp. 119-21 for an argument that in North America, the British Crown certainly saw itself as dealing with recognized and independent sovereigns when it negotiated treaties with indigenous peoples. McNair, supra note 6, p. 52-4.
The Half-Life of Treaties: Waitangi, Rebus Sic Stantibus 165
[i]ts execution meant that the separate international identity of the Confederation of Chiefs was extinguished and the procedure of the implementation of the reciprocal promises was transferred from the plane of international law to the plane of internal public law.17
By "the Confederation of Chiefs" Brownlie means the entity formed in 1835 -the beginnings of a nation - which constituted the auspices under which individual chiefs signed the Treaty in 1840. Or, if you don't accept the idea of the Confederation,18 you can say that the chiefs effectively abolished themselves in their sovereign capacity by their accession to the Treaty - at least if you buy the conventional story of what the Treaty's First Article effected.19 In other words, the Treaty itself generates the first juridical change of circumstances that confronts it in its later operation.
However, regarding Waitangi as an intra-national rather than as an international treaty does not excuse us from considering its possible obsolescence. After all, the doctrine of rebus sic stantibus does not apply in international law alone; it can be seen as a borrowing from contract law doctrines of frustration and impossibility.20 Indeed some have said it has the character of a very general principle of the law of obligations or of jurisprudence generally.21
If the Treaty of Waitangi is to be treated as a constitutional charter - like the Maori Magna Carta, to use Paul McHugh's phrase22 - then we ought to acknowledge that there too there is a need to distinguish between features of our constitutional heritage which are up to date and those which have been superseded by circumstances. The historical rigidity of constitutions is not always a virtue. You may say: "Well, the United States Constitution continues to bind even though it was framed 50 years before the Treaty of Waitangi and even though its most significant recent amendments were enacted not long after 1840." But in point of fact, most constitutions don't last anything like that long. The
17 Brownlie, supra note 15, p. 9.
166 Otago Law Review (2006) Vol 11 No 2
United States Constitution is an odd exception, and its longevity gives rise to all sorts of problems, which are unique to American constitutional law and which are played out on the sterile matrix of constitutional originalism.
It may seem like blasphemy to suggest that the Treaty is obsolete. I have heard people say that the Treaty is timeless.23 Michael Cullen recently emphasized that "the Treaty does not have a sunset clause."24 But actually the way New Zealanders talk about the Treaty indicates that it is not immune from the impact of changes in circumstances. Many of those who put their greatest faith in the Treaty do so in the expectation that it will be understood as something evolving, its three clauses read not literally but as a starting point from which we can infer - or construct -something called the principles of the Treaty of Waitangi.25 So, the Waitangi Tribunal has insisted that the Treaty "was not intended to fossilize the status quo, but to provide a direction for future growth and development."26 It is capable "of a measure of adaptation to meet new and changing circumstances."27
However, it is not enough to say that change in the light of circumstances is permissible. We need to understand how these changes occur. For there is always a danger that the Treaty itself will just drop out of this process: our own thoughts about modern circumstances dominate and guide the reinterpretation of the provisions of the Treaty, rather than the provisions of the Treaty guiding our thoughts about how to deal with modern circumstances. Lord Cooke once said that "[t]he principles of the Treaty have to be applied to give fair results in today's world."28 But if this means anything, I suppose this has to mean that we already know what would be fair in today's world (apart from the terms of the Treaty) so
28 Tainui Maori Trust Board v. Attorney-General [1989] NZCA 175; [1989] 2 NZLR 513, at p. 530.
The Half-Life of Treaties: Waitangi, Rebus Sic Stantibus 167
that we can use that knowledge to "interpret" the document and "its" principles.
In any case, the attitude which treats treaties as living and evolving organisms has its limits. After a while, the Treaty can become a rather self-defeating and restrictive matrix on which to project flexibility in the light of modern circumstances; it can become an obstacle for updated relationships rather than a facilitator of that evolution. I believe this has happened in New Zealand in a number of regards, and I will talk about that later. What I am trying to do right now is explain why it may be worth considering, not just evolution and interpretation, but this particular international law doctrine of the wholesale denunciation or abandonment of a treaty in the light of changing circumstances.
3. Rebus Sic Stantibus: "an odd corner of the law of treaties"?
Detlev Vagts, who has taught international law at Harvard for as long as anyone can remember, called the doctrine I referred to - rebus sic stantibus, the idea that a state may be excused from performance of a treaty obligation by virtue of a fundamental change of circumstances - an "odd corner" of the law of treaties.29
One question is about the juridical status of rebus sic stantibus. Is it a legal principle? A moral principle? A piece of Machiavellian statecraft?30 The byproduct of a Hobbesian conception of sovereignty?31 A politic concession to sovereign right? The International Law Commission once observed that "if international law provided no way to terminate an unduly burdensome treaty, it is likely that parties would take action outside of the law."32 So perhaps the doctrine exists to protect international law. Even if it is a legal doctrine, there are different ways of conceiving its legal character. Is rebus implied as a term (a clausula) of every treaty? Black's Law Dictionary calls it a tacit condition,33 and we know that sometimes treaties themselves have explicit rebus clauses. (Article 10 of the Nuclear Non Proliferation Treaty is a good example.)34 Or is it a freestanding legal principle? Or is it something in between, like the doctrine of
168 Otago Law Review (2006) Vol 11 No 2
impossibility or frustration in the law of contract?
I guess its status is settled these days by its incorporation into the 1969 Vienna Convention on the Law of Treaties (Article 62). But even there the formulation of the principle is negative and very highly qualified:
A fundamental change of circumstances ... not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty, unless (a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and (b) the effect of the change is radically to transform the extent of the obligations still to be performed under the treaty.35
Also, some major powers, like the United States, have not ratified the Vienna Convention. Most authorities say that rebus has not only this conventional status but also has - and had before the Convention - the status of customary international law.36
Another question is how the doctrine actually works. Since 1969 it has been considered a couple of times by the International Court of Justice, but the Court has declined to apply rebus in those circumstances. One case involved an agreement between Hungary and Czechoslovakia to build some dams on the Danube, from which Slovakia wished to withdraw after Czechoslovakia had split up.37 The other was a case involving a fisheries agreement between the UK and Iceland, an agreement to the effect that Iceland would not seek to extend the fourteen mile fisheries limit that had been assigned to it by the Treaty without submitting to international arbitration; Iceland sought to withdraw on the grounds that fourteen mile limits were now normal, so that it should not have had to agree to this requirement in order to secure one.38 In both cases the International Court of Justice showed itself quite reluctant to permit countries to rely on rebus sic stantibus.
But the Court's use or non-use of the doctrine is not necessarily its main field of operation. Article 62 itself does not require the intervention of the Court. Parties will sometimes act unilaterally on the basis of rebus sic stantibus, and not be challenged. In September 1990, the German Democratic Republic (East Germany) gave formal notice through its ambassadors in the USSR and elsewhere in Eastern Europe that it was repudiating its obligations under the Warsaw Pact, citing the provisions of the Vienna Convention on Treaties that deal with fundamental change in circumstances.39 If ever there was a relevant change in
35 Vienna Convention on the Law of Treaties, Article 62 (1) - my emphasis.
The Half-Life of Treaties: Waitangi, Rebus Sic Stantibus 169
circumstances, this surely was it. The identity of the party seeking to denounce its obligations was about to change in a matter of weeks; it would reunite with a political entity to whom it had stood for forty-three years in a posture of hostility. The identity of the country - the USSR - whose power underwrote the Warsaw Pact was about to change. The geopolitical situation had suddenly and radically transformed itself. The Cold War was over. And the sense of socialist solidarity that had bound the Warsaw Pact allies together had dissolved or was dissolving. In the Danube case, I mentioned a moment ago, the ICJ held that the change in political circumstances did not affect what was essentially an economic and resource agreement with regard to the Danube Dams.40 But the Warsaw Pact example is quite different. To expect that a multilateral security treaty could survive such changes is to live in cloud cuckoo land.
So: parties will sometimes act unilaterally on the basis of rebus sic stantibus; or they will negotiate their way out of a treaty on that basis. Now of course you can negotiate your way out of a treaty on any basis. But still, bargaining in the shadow of Article 62 - negotiation with rebus sic stantibus in the background as something to which you can appeal to in your discussions - is quite different from negotiating and bargaining in the absence of the doctrine.
Obviously it is a doctrine that has to be treated carefully. Presumably it is the point of treaties to protect expectations against change.41 Like all promises and contracts, treaties are supposed to provide "islands of predictability" in a sea of change.42 The challenge lies in keeping states from reducing an implied escape clause to a mere diplomatic cover for the abandonment of inconvenient promises.43 (The area seems rife with contradiction and, for those of you who know about these things, the thesis of pacta sunt servanda and the antithesis of rebus sic stantibus seem fair game for a Critical Legal Studies diagnosis.)44
Defining the appropriate type of change in circumstances is crucial to restricting the ambit of rebus sic stantibus and making sure it does not undermine the whole regime of treaty-based stability. Most authorities talk of "fundamental" changes or require a "vital change" in circumstances. But, as one has scholar has
Case Concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia) [1997] I.C.J. 7
(International Court of Justice, September 25,1997).
Some scholars simply oppose rebus altogether on this ground. See e.g. Antony
Carty, "Scandinavian Realism and Phenomenological Approaches to Statehood
and General Custom in International Law," 14 (2003) 14 European Journal of
International Law 817, at p. 832: "The function of law in general and that of treaties
in particular is to stabilize juridical relations among states, in spite of changes of
circumstances; if the circumstances do not change it would hardly be necessary to
conclude treaties having obligatory force. The clause rebus sic stantibus is therefore
in opposition with one of the essential aims of the international juridical order."
Cf. Hannah Arendt, The Human Condition (University of Chicago Press, 1958), p.
244.
Phillimore, supra note 9, at p. 116, cites a warning by Vattel to the effect that "the
State, like the Individual, which takes advantage of every change of affairs to
disengage itself from the obligations of a solemn covenant, weakens the
foundations of good faith on which the peace of the world depends."
See the discussion in Phillip R. Trimble, "International Law, World Order, and
Critical Legal Studies," (1990) 42 Stanford Law Review 811, at p. 825.
170 Otago Law Review (2006) Vol 11 No 2
remarked, simply using synonyms for substantial change, such as "essential," "vital," or "fundamental," is not by itself going to be particularly helpful.45
4. Types of Fundamental Change
What sort of changes are relevant in a rebus sic stantibus analysis? Lord McNair gives, as illustrations of material changes, the drying up of a river or the silting up of a harbor that was the subject of a treaty. A real-life example involved the arrangements for holding prisoners-of-war in the Falklands conflict. The relevant conventions (which of course have the status of treaties) required the British authorities to hold Argentine prisoners in camps on dry land; but they had to break the treaties and held them on board ship, after all the tents blew away.46 The changes in question may also be material in the economic sense - changes in the scale of costs that treaty obligations would involve or changes in the fiscal situation of one or other of the parties.47
Certainly changes in material circumstances would be relevant in the New Zealand case. No one can deny that there have been massive demographic changes, for example, in New Zealand in the last 165 years. Among the most striking are the urbanization of the Maori population and the extent of
Damien Schiff, "Rollin', Rollin', Rollin' on the River: A Story of Drought, Treaty Interpretation, and Other Rio Grande Problems," (2003) 14 Indiana International and Comparative Law Review 117, at p. 141. See Vagts, "Rebus Revisited," supra note 36, at p 474.
Vagts, supra note 36, p. 466, cites "a controversy between Britain and the Netherlands over the continuing effect of a 1585 Anglo-Dutch Convention of Military Assistance and Subsidy under which England promised to provide financial support for the Dutch in their part of the common opposition to Spain. The struggle with Spain proved longer and more costly than was anticipated, such that Queen Elizabeth I told the Netherlands that 'conventions must be understood to hold only while things remain in the same state.' The Dutch, fearing to anger so mighty a princess, agreed to relieve her of further obligations." Sometimes, in this issue of expense, the boot is on the other foot. The San Francisco Peace Treaty after the Second World War was concluded on the premise that Japan would not be able to fully compensate the Allied Powers because of its poor economic situation in 1945. Article 14(a) of that Treaty provides:
It is recognized that Japan should pay reparations to the Allied Powers for the damages and suffering caused by it during the war. Nevertheless, it is also recognized that the resources of Japan are not presently sufficient, if it is to maintain a viable economy, to make complete reparation for all such damage and suffering and at the same time met its other obligations.
But the argument has been made by Makoto Nishigai, "The Comfort Women Case in the United States: A Note on Questions Resolved and Unresolved in Hwang v. Japan, the First Lawsuit brought by Asian Women against Japan for War Crimes," (2002) 20 Wisconsin International Law Journal 371, at pp. 393-4, that Japan's economic recovery and prosperity since 1945 constitutes a fundamental change of circumstances: "Now that Japan is financially able to make adequate reparations, some have argued that Japan should be prevented from invoking the postwar treaties and agreements as a defense" against claims for reparation (ibid., p. 394).
The Half-Life of Treaties: Waitangi, Rebus Sic Stantibus 171
intermarriage between Maori and pakeha. These have often been cited by political critics of the Treaty industry, like Don Brash in his Orewa speech.48 But I want to focus also on a set of changes that are somewhat more abstract and I think more interesting: changes in attitudes towards governance and changes in the character and responsibilities of iwi and hapu, which are connected to the material and demographic changes I mentioned. It has become the case that large numbers of Maori no longer look to their tribes or tribal leaders, that is to the signatories of the Treaty, for very much in the way of welfare and protection. And they haven't done so for two or three generations or more. In that sense there has been a signal transformation in some very basic facts about political responsibility. We should not pretend that these have not occurred and or that they should have no impact on the way we think about the Treaty. So I am interested particularly in these background political and ideological changes (like the Warsaw pact case, for example.) Now it is true that a mere change of regime -"e.g. from monarchy to republic or vice versa" - is usually not sufficient to constitute a fundamental change of circumstances.49 But the cases that interest me - the changed situation in New Zealand that interests me - involve something more like a change in political mentality.
Here's an interesting analogy. In 1914 Turkey declared its intention to put an end to the special privileges of foreign powers and foreign nationals in Turkey, known as capitulations,50 dating from a treaty of 1535 between Francis I of France and Suleyman the Magnificent, and proceeding successively for all the Western powers throughout the 17th, 18th, and 19th centuries.51 Turkey purported to repudiate these treaties on the ground that capitulations and special privileges for foreign powers constituted "an impediment to the progress and development of the Ottoman
49 See L. Oppenheim, International Law: a Treatise (Longmans, 1912) at p. 551.
51 See also Vamvoukos, supra note 20, at p. 83.
172 Otago Law Review (2006) Vol 11 No 2
Empire."52 Some of the Western powers responded that since these were established by treaty, they could not be abrogated unilaterally by Turkey. (Britain, I gather, was particularly concerned about losing a peculiar privilege granted in 1675, which authorized "the king of England to buy in Turkey with his own money two cargoes of figs and raisins, in fertile and abundant years", and provided "that after a duty of 3%, has been paid thereon, no obstacle or hindrance shall be given thereto.")53 The Sublime Porte (that is what Turkey used to call itself) responded:
[N]o treaty can contain provisions which should perpetuate themselves to eternity, when they deal with matters of commerce, of organization, and of the juridical procedure or administration, which should evidently be submitted to the evolution of time. The ... regime of the capitulations, obsolete and no longer responding to modern needs ... threatens [the government of Turkey's] existence and renders very difficult the conduct of Ottoman public affairs.54
Turkey's claim was not settled before the outbreak of the First World War and afterwards, with the Allies in occupation of Turkey, there was an attempt to secure the capitulations by a modern treaty (Treaty of Sevres). But in 1922-3, when negotiating the more moderate Treaty of Lausanne, Turkey raised the issue again, claiming that fundamental changes in the nature of the modern state justified termination of capitulation treaties by rebus sic stantibus. It was also said that the reforms that Turkey had made in its own legal system and in the administration of justice meant that Turkish legal institutions were now the equal of those in Europe.55 The British, the French, the Italians, the Japanese and the Americans all conceded that the capitulations regime had had its day and must be replaced, that it was "archaic" and that "according to present-day ideas of law the capitulatory regime is ... liable to diminish the sovereign powers of an independent state."56 After prolonged negotiations, a framework for fading out the capitulations regime was agreed in Article 28 of the Treaty of Lausanne.
I am particularly interested in that case, because it is not so much a material change of circumstances as a change in the nature and theory of governance. "Governmentality", you might call it. The treaty granting the capitulation is predicated on one sort of governmentality; it is repudiated on the basis of another sort of governmentality. And I think there have been massive and similar changes in governmentality in New Zealand, both as to whether there is room in modern statecraft for the sort of rangatiratanga ostensibly secured by Article 2 of the Treaty of Waitangi, and as to whether Maori tribes and tribal groups, iwi and hapu, remain the sort of entities that are capable of performing political functions of this sort in the New Zealand context.
But before I go into that I want to consider some versions of this that have unfolded in the Treaty jurisprudence of the United States -I mean in its attitude to treaty arrangements with indigenous peoples.
53 (1911) Encyclopedia Britannica,
supra note 50.
54 Quoted by Hill, supra
note 52, at p. 27.
55 Ibid., pp.
28-9.
56 Ibid., p. 29.
The Half-Life of Treaties: Waitangi, Rebus Sic Stantibus 173
5. Treaties with Indigenous Peoples
I often wonder why courts and legal scholars in New Zealand pay so little attention to treaty jurisprudence in the United States. Up until the end of treaty making in 1871,57 the United States concluded a very large number of treaties with the indigenous peoples of North America, that is with the large numbers of Indian nations that inhabited the continent where the United States sought to establish itself. There is not, as there is in New Zealand, just one treaty - the Treaty - but hundreds of them, and they have been subject over the last century or two to an immense amount of litigation and discussion so that there is now a considerable body of American treaty law and doctrine. Those in other countries sometimes make fun of Americans like Justice Scalia for their resolute constitutional parochialism, their refusal to take any account of constitutional and human rights doctrine elsewhere around the world;58 but are we in New Zealand not guilty of something analogous in our studied ignorance of American treaty jurisprudence?
It is not enough to respond that the American situation is different. Of course it is. But legal analysis always works on the basis of imperfect analogies and the exploration of similarities in the midst of difference. (That is what I am doing in this lecture.) And my question now is not: why are we not applying American doctrine in New Zealand cases? My question is: why are legal scholars who study the Treaty of Waitangi not even accessing this body of jurisprudence for consideration and discussion in the New Zealand context? (Paul McHugh is an honorable exception;59 but though he's a New Zealander, Professor McHugh works in England, not in the rather inward-looking world of Treaty jurisprudence in New Zealand.)
In the United States, under Article 6 of the Constitution, treaties are part of the supreme law of the land. They are on a par with federal statutes, which means, in effect, that they can be abrogated by a later statute, provided the intention to abrogate the treaty is explicit. Congress has plenary power in this area and therefore has the right to legislate on matters affecting Indian land and affairs.60 So, for example, in the case of United States v. Dion (1986),61 the Yankton Sioux tribe had retained by an 1858 treaty the right to hunt bald eagles and golden eagles within their reservation; but the Supreme Court held that late twentieth century environmental legislation - the Eagle Protection Act and the Endangered Species Act - abrogated the treaty right, and they upheld the conviction of a
58 See, e.g., Roper v. Simmons [2005] USSC 2017; 125 S.Ct. 1183 (2005), at 1225-30 (Scalia J., dissenting).
60 Lone
Wolfv. Hitchcock. 187 U.S. 553 (1903).
61 [1986] USSC 127; 476
U.S. 734 (1986).
174 Otago Law Review (2006) Vol 11 No 2
member of the tribe for shooting four bald eagles and one golden eagle on their South Dakota reservation.
Indeed, the question of the application of rebus sic stantibus to treaties with indigenous peoples has arisen in the United States mainly with regard to ecological issues. States have primary environmental responsibility and state laws cannot abrogate federal treaties, but it has been held that states have the right to regulate resources use, though they must do so in a way that pays proportionate attention to treaty rights and not just regulate native American resource use as though the treaties didn't exist.62 These are extremely interesting precedents, and, as I said, it would be well worth while New Zealand paying some attention to them, particularly insofar as they relate to Treaty-based rights for off-reservation fishing and hunting. The states' powers are construed as regulatory, but the United States - the federal government - can actually abrogate a treaty altogether on environmental grounds. We have nothing like the federal structure, but still the substance of both sets of rules, I think, should be of interest to New Zealanders.
It has sometimes been suggested - Campbell McLachlan urges this on me63 -that a better approach (than abrogating or denouncing the treaties) would be to treat them as evolving organisms and reinterpret them in a way that is sensitive to environmental concerns. This has certainly been done in the international sphere, and something approaching a principle has emerged that treaties are now to be interpreted in the light of present-day environmental concerns.64 The difficulty in the case of treaties with indigenous peoples, however, is that there is also a principle that treaties are to be construed if possible in the interests and expectations of the weaker party and "in light of the common notions of the day,"65 and there is no doubt that the First Nations often regarded it as quite acceptable to engage in hunting or gathering scarce resources to the point of depletion or extinction. "During the treaty-making era, some tribes went so far as to engage in depletion harvests, and, notwithstanding our modern environmental enlightenment, only a coerced construction could today impute quantitative restrictions on the nineteenth-century instruments."66 So, sometimes a rebus sic stantibus treatment is the only option, if environmental concerns are to be taken seriously.
65 Oliphant v. Suquamish Tribe, [1978] USSC 34; 435 U.S. 191, 206 (1978).
The Half-Life of Treaties: Waitangi, Rebus Sic Stantibus 175
There is also a second set of cases in the United States that I find particularly interesting, which involve consideration of the modern-day status of groups that claim the benefit of late 18th or 19th century treaty rights. In Samish Indian Tribe v. State of Washington (2004), the Ninth Circuit had to consider whether the Samish satisfied the criterion of having "maintained an organized tribal structure."67 There was dispute in that case about what the precise criteria were: the Ninth Circuit's criteria differed somewhat from the federal government's criteria, which required, for example, that the group must have "been continuously identified throughout history as Indian or aboriginal, [must have] existed as a distinct community since first sustained European contact, [must have] maintained political influence within itself as an autonomous entity and that 80 percent of its members [must be] descendants of the historical Samish tribe."68 For our purposes in this lecture, the outcome matters less than the willingness of the authorities to undertake this inquiry, and to ask whether they were actually dealing with a governmental or a quasi-governmental entity, as opposed to what might be in effect a business corporation with only the ceremonial trappings of sovereignty. I think this would be a healthy question to ask in the New Zealand context also. We should not just assume that treaty rights that were vested in entities that had undoubted political and economic responsibility for their members at the time they were negotiated necessarily devolve a hundred and fifty years later on to successor entities that have preserved the name, but have lost this essential character and function.
6. Changes in New Zealand
So let us turn then to the changes that we see in the New Zealand context. I mentioned huge material and demographic changes, but I said I wanted to concentrate on a couple of more fundamental changes that are partly the reflex of political theory and political organization upon the circumstances in which the Treaty was enacted. The fundamental changes of circumstances that interest me are, first, as I have just said, changes in character and responsibilities of iwi and their relation to those New Zealanders of Maori descent,69 and second, changes in state practice in New Zealand.
(1) You may remember a decision of the New Zealand Court of Appeal five years ago in Te Waka Hi Ika o Te Arawa v. Treaty of Waitangi Fisheries Commission. The Court held, after reference back from the Privy Council, that only iwi could benefit from twenty-first century redress of the nineteenth century expropriation of fishing rights, and that more recently constituted Urban Maori Authorities (UMA) were not formally entitled to benefit, even though many of the individuals and families who descended from Maori in 1840 did not have established connections with iwi, and lived in cities and to the extent that they looked to anyone but themselves and the Government of New Zealand for welfare and
67 641 F.2d at 1372
(2004).
68 Idem.
70 [2000] 1NZLR 285.
176 Otago Law Review (2006) Vol 11 No 2
protection, they looked to recently constituted entities like Urban Maori Authorities. Never mind, said the Court, the Treaty was entered into with the tribes and the chiefs and the tribes and the chiefs today are its formal beneficiaries. Well, it seems to me (as it seemed then to Justice Ted Thomas in dissent)71 that this is an overly formalistic analysis. The basis on which people have established relations with groups of these various kinds is quite different as between the 1860s and the present day. I firmly believe that we need to pay much more attention to the possibility that groups may change their substantive character while preserving just their nominal identity, and the ceremonial trappings of their former authority.72
Paul McHugh has argued that we need to move beyond the structural assumptions that the Treaty embodies towards a post-structural and relational approach that does not privilege tribalism - Maori as an ethnic identity rather than a tribal group or collection of tribal groups.73 And Kenneth Minogue has expressed a worry that social justice conducted under the auspices of the Treaty will "constitute a piece of social engineering in which Maori are retribalized. Such a retribalization helps to make plausible the premise that Maori are a separate people from other New Zealanders, a premise whose plausibility had been declining decade by decade."74
So really there are two sub-points under this first heading. We have to consider whether it still makes sense to proceed on the basis of Treaty rights in circumstances where (a) the iwi have changed their character and (b) many descendants of those for whom the Treaty was signed no longer have any substantial connection to iwi or hapu and are not looking to them for either governance or welfare or protection. (I argued last year in Wellington75 that this is particularly important with regard to foreshore and seabed rights, which I think are best understood as having been held by the iwi not as collective property but as incidents of their sovereign responsibility for the regions and the people they governed in 1840. And if the groups in question are no longer performing those sovereign functions, it does not seem to make sense to treat these as purely economic resources to be protected by customary property rights against the Crown, when it is the Crown that is now in the position the tribes were formerly in - namely, the position of seeking to exercise sovereign responsibility for the regions and people that they govern.)
(2) The second point is about governmentality. The text or texts of the Treaty are contested, we know; but it is widely believed that one of the main results of the Treaty was to effect a transfer of sovereignty from the Confederation to the Crown or from the Chiefs to the Crown, while at the same time, preserving
Ibid., at p. 341 (Thomas J., dissenting).
See the discussion in Waldron, "Redressing Historic Injustice," supra note 11, at
pp. 148-50.
Paul McHugh, "Aboriginal Identity and Relations in North America and
Australasia," in Living Relationships, supra note 27, at 107.
Minogue, supra note 15, p. 46.
Richard Epstein, "A Discussion on the Foreshore and Seabed Issue," Centre for
Public Law, Victoria University of Wellington, August 2, 2004, with commentary
from Professor Jeremy Waldron and Professor Paul McHugh.
The Half-Life of Treaties: Waitangi, Rebus Sic Stantibus 177
something like chiefly authority - the te tino rangatiratanga of the Chiefs who were signatory to the Treaty.
That distinction between sovereignty transferred and rangatiratanga maintained may possibly have made sense in 1840 and for a considerable period afterwards. But as we know, sovereignty is a voracious and expansive concept, one whose tendency is to pre-empt or drive out the claims of political sub-units, except in the context of very specific constitutional arrangements, such as explicitly federal structures or arrangements of semi-sovereignty such as those that characterize the relation between the United States and the native American nations within its borders. Without such structural and territorial arrangements firmly in place, sovereignty will be expansive - not perhaps as a matter of the autonomously inexorable voracity of the concept itself, but because of the nature of modern state and state-building that took place in New Zealand in late 19th and early 20th century, with the state taking on a wider and wider array of tasks and a more comprehensive responsibility for economy, environment and welfare that requires a degree of homogenized authority over the whole country. Given that process, and given the sociological and demographic changes that accompanied it, the suggestion I want to make is that there has been a fundamental change of circumstances, which has made the rangatiratanga guarantee of the second clause of the Treaty of Waitangi fairly meaningless now, or mean something quite different now, 165 years after its signature. So, as I said, I am particularly interested in the idea that, at the very least, the Treaty may require modification because of its obsolescence relative to modern notions of sovereignty, or post-sovereignty.
The analogy I would use is the Turkish capitulations case, which I mentioned earlier - the issue of the special privileges of foreign powers and foreign nationals in Turkey, known as capitulations dating from treaties as far back as 1535. What the Turks said about these capitulations and what the British, French, Italians, Japanese and Americans eventually conceded, was that the privileges these treaties established were "in complete opposition to the juridical rules of the [twentieth] century and to the principle of national sovereignty."76 Capitulations, Turkey said, "are absolutely incompatible with the principles of modern public law," because they are based upon the idea of personal, rather than territorial law. The Western powers, acknowledging the Turkish claim in 1923, said that "it must be recognized that according to present-day ideas of law the capitulatory regime is regarded as liable to diminish the sovereign powers of an independent state."77 There has been a change in governmentality, and although that is not a tangible or material change, it still fundamentally affects the environment in which these ancient treaties are expected to operate.
Now, in New Zealand, the academic Treaty literature is replete with all sorts of academic suggestions and suggested frameworks for a new constitutional order, ranging from "Maori sovereignty," to "iwi models of self-determination," "bi-nationalism," "division of jurisdiction," "shared resource control," "privileged RMA input," and so on. Also, it is often said that the voracious
See Hill, supra note 52, p. 27. Ibid., p. 29.
178 Otago Law Review (2006) Vol 11 No 2
concept of sovereignty that I referred to is on the way out in the 21st century. That is an interesting point. The most robust conception of sovereignty is on the way out, I suppose, in international affairs; but whether we also want to roll back the internal sovereignty of the state - give up on its comprehensive welfarist and other responsibilities - and begin instituting the sort of half-hearted and messy patchwork of jurisdictions and personal law that would be needed for genuine legal pluralism in the particular circumstances of New Zealand, given its demographic and territorial realities, and given the social problems that this sick and isolated society is going to have to confront in the next few years is another question.78 I think we should have gravest misgivings and hesitations about that, and - if we think the Treaty requires it - we should project those misgivings and hesitations onto the Treaty itself and all who sail in her.
7. The Clean Hands Principle
Anyone who thinks responsibly about a document said to be so important to New Zealand as the Treaty of Waitangi is, must think also about the possibility of its obsolescence or its having been overtaken by events or changes in circumstances since 1840. I have offered the international law doctrine of rebus sic stantibus and some examples of its application as a sort of matrix on which we might set out some of that thinking. I am sure there will be a great deal of resistance to what I have said. But again - even as a thought-experiment - it might be worth considering how these objections to my thesis themselves relate to this international law doctrine. As I said at the outset, rebus sic stantibus in its embodiment in the Vienna Convention is a very heavily qualified principle. And certain of those qualifications may be thought to undermine some of what I have said.
If you look at clause 2 of Article 62, for example, you will see two specific exceptions: (a) rebus does not apply to a provision of any treaty that establishes a boundary and (b) it does not apply "if the fundamental change [of circumstances] is the result of a breach by the party invoking it... of an obligation under the treaty."79
The first of these is interesting in the American context. Arguably the boundary setting provisions of Indian treaties are outside the scope of the doctrine. This is one of many important disanalogies with the New Zealand case:80 there is nothing in New Zealand equivalent to the territorial and sovereignty reservations
78 I have in mind problems like child poverty, teen suicide, radically unequal and
low quality health care, deteriorating educational arrangements, illiteracy,
high levels of domestic and social violence, degradation
of urban social
environment, etc. Vienna Convention on the Law of Treaties, Article 62
(2).
80 Cf. Coates, supra note 27, at p.
77: "New Zealand... has unique elements, including
... the high level of social and economic integration between Maori and Pakeha, the difficultly of identifying a land-base for specific Maori groups, and intermarriage between Maori of different iwi and between Maori and Pakeha. Models from Canada, where most First Nations retain an attachment to a specific band or tribe, or the United States, where many groups have sizable land-bases, will only have partial applicability."
The Half-Life of Treaties: Waitangi, Rebus Sic Stantibus 179
of many of the American treaties, establishing indigenous peoples as sovereigns in their capacity as "domestic dependent nations."81
But obviously the second exception - exception (b) in Article 62 (2) - is of interest in New Zealand: this is the clause that says that change of circumstances may not be invoked "if the fundamental change is the result of a breach by the party invoking it ... of an obligation under the treaty." I read it as a sort of "clean-hands" provision, and it can be interpreted in a broader or narrower sense. The International Law Commission commentary on this says that "a subjective change in the attitude or policy of a Government could never be invoked as a ground for terminating, withdrawing from or suspending the operation of a treaty."82 That, I submit, is far too strong. Think of the Warsaw Pact example: the German Democratic Republic partly caused the change it was relying on, by its own attitude to the former Soviet Bloc, to its erstwhile West German enemy, and to the Cold War in general. Surely, it is not to be the case that therefore East Germany is not entitled to repudiate the Warsaw Pact. Or think of the ecological examples: there is a change in attitude on the part of one of the parties, but it is a change in its attitude to its overall responsibilities. Or think of the Turkish capitulations case - the attitude of the Turkish government towards the question of its own internal sovereignty and its own arrangements for governance.
So although it might be said that it is the Crown's fault that we have had the sea-change in governmentality in New Zealand that I mentioned, I submit that we should not conclude that therefore New Zealanders cannot be allowed to take any notice of this change so far as the reconsideration of Waitangi in the light of rebus sic stantibus is concerned. In any case, I am not remotely interested in urging the government to repudiate the Treaty on this ground; I am urging only that we think about it in the light of this doctrine, and in the light of an intelligent understanding of this doctrine's provisions and conditions.
8. Conclusion
I said at the beginning of section 7 that anyone who thinks responsibly about a document said to be so important to New Zealand as the Treaty of Waitangi must think responsibly also about the possibility of its obsolescence or its having been overtaken by events or changes in circumstances. Now we can think defensively or dismissively about these concerns if we like - if we are determined to protect the Treaty from critical reconsideration at any cost. But I believe we need to reflect in a structured way on this issue, and I submit that the international law doctrine of rebus sic stantibus provides just such a structured basis for reflection. It may not be the only basis for reflection and reconsideration, but it is a starting point.
One of the things that strikes me when I visit New Zealand - and I do so regularly - is that although everyone talks about "the Treaty debate," there is in fact very little real adversarial discussion of the fundamental status of the Treaty
81 Cherokee Nation v. Georgia, [1831] USSC 6; 30 U.S. 1,17 (1831).
180 Otago Law Review (2006) Vol 11 No 2
of Waitangi in academic circles. I am thinking particularly of academic law. There's next to nothing in the university law reviews: I hope Otago will publish this! Andrew Sharp's sensitive and intelligent discussion in Justice and the Maori is a fine exception;83 but Professor Sharp is a political scientist, not a lawyer. And Paul McHugh's careful and considered work is important too,84 but Professor McHugh works in Cambridge, mainly, in England, not in the New Zealand legal academy.
Maybe every legal academic in New Zealand really does support the Treaty and no one can think of anything critical to say or publish. That would be a remarkable consensus, if it were true; unprecedented in fact. You can't get most academics to agree that the sun will rise tomorrow, let alone that a Treaty signed in the middle of the nineteenth century should continue to be sacrosanct. Maybe the remarkable consensus is explained by the simple fact that truth is on the side of the Treaty industry: the Treaty really is important and it really still is an appropriate basis for thinking about these matters in New Zealand; and this is now just unanimously recognized.
Still one wonders whether some debate might not be desirable. I began by mentioning John Stuart Mill, and I want to finish with him - in a more familiar guise. In Chapter Two of his great essay On Liberty, John Stuart Mill contemplated the possibility that as truth generates consensus, "the number of doctrines which are no longer disputed or doubted [is] constantly on the increase."85 This is marvelous, said Mill, but it does have some unfortunate consequences. A principle that is uncontested tends to become thoughtless; it is often free and vigorous debate that keeps a doctrine alive.
The loss of so important an aid to the intelligent and living apprehension of a truth, as is afforded by the necessity of ... defending it against... opponents,... is no trifling drawback from, the benefit of its universal recognition. Where this advantage can no longer be had, I confess I should like to see the teachers of mankind endeavoring to provide a substitute for it; some contrivance for making the difficulties of the question as present to the learner's consciousness, as if they were pressed upon him by a dissentient champion, eager for his conversion.86
Now Mill at this stage was not talking about treaties or indigenous rights. He was talking about religious orthodoxy. But his points are worth thinking about in the Treaty context. He went on (in his musings about the effects of unanimity) to remark that instead of seeking contrivances for the purpose of keeping a debate alive, we are all too often in danger of losing those we have formerly had.87 For when someone does express opposition to a received truth, we affect shock and
84 See supra notes 22, 59,
and 73.
85 John Stuart Mill, On Liberty, ed.
Currin V. Shields (Bobbs Merrill, 1956), p. 53.
87 Ibid., p. 54.
The Half-Life of Treaties: Waitangi, Rebus Sic Stantibus 181
outrage; we say we are offended and he ought not to have spoken in that way. We call him a redneck. (That is not Mill's phrase, but you get the point, I hope.) Then Mill said this:
If there are any persons who contest a received opinion,... let us thank them for it, open our minds to listen to them, and rejoice that there is some one to do for us what we otherwise ought, if we have any regard for ... the vitality of our convictions, to do with much greater labor for ourselves.88
So here is my conclusion. Maybe it's a good thing for outsiders who have nothing local to lose to come home once in a while and ask some hard questions about the reverence in which this simplistic and antiquated document is held. I am always asked by friends within and outside the academy: "Aren't you afraid of what the reaction will be if you say this?" Or "I bet you really want to get on the plane quickly after you've said that," and so on. I think that is silly. We have a responsibility as tenured academics to explore different frameworks and new and perhaps disconcerting pathways of thought. If we are not prepared to do that, we do not need our tenure and many of us are wasting our salaries.
I am not saying that everyone needs to start writing and publishing along lines that are at variance with their own deeply held beliefs. But perhaps New Zealand academics should be a little more reluctant than they are to use words like "redneck" and "racist" to stigmatize anyone who wants to think carefully or reflectively or critically about these matters. Like John Stuart Mill, we do not want to get into a situation "in which a ... portion of the most active and inquiring intellects find it advisable to keep the genuine principles and grounds of their convictions within their own breasts."89 Everyone agrees that Treaty issues are important, but importance in the matters does not mean a sense of the sacred; it means a sense of urgency, openness, and outreach in debate for all the resources of critical intelligence that we can find.
Ibid., p. 55. Ibid., p. 40.
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