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International Law and the Principle of Free Consent

This column is an effort to clarify a number of points about international law and the U.N. Declaration on the Rights of Indigenous Peoples.

First, it is important to remain mindful of the fact that all law, including what is referred to as “international law,” is a product of the human mind. In all societies, human beings have created specific ideas – based on social and cultural norms – that have come to be regarded as “law.”

Historically, indigenous peoples were never afforded the opportunity to directly participate in the formation of the ideas that came to constitute international law, which was originally known as the international law of Christendom. Only in the 1970s did this begin to change somewhat.

In general, the ideas that make up “the law” in a given society are supposed to work as a form of constraint on the individual members of that society or body politic. Such ideas define what the members of a society can and cannot do legally, and also define the consequences of behaving in ways that are contrary to the ideas called “the law.” Likewise, the aggregate of ideas that make up international law are an effort to form a clear understanding of how nation-states are supposed to behave toward each other in times of peace and in times of war.

However, because “states” are defined as independent “sovereign” entities, by definition they are not considered subject to the constraints of law, except to the extent that they have freely agreed to abide by international legal norms. International law, in other words, is an idea-system that sovereign nations or states willingly consent to abide by through treaties, agreements or conventions. It is in this sense, then, that international law is said to be based on the free consent of nations or states.

The point I’m leading to is this: American Indian nations never freely consented to be bound by or to abide by the ideas historically known as the international law of Christendom. (“Christendom” was a term used to describe international law until 1856, when Turkey was admitted into the Family of Nations.)

From an indigenous perspective, originally free indigenous nations have an inherent ancient independence and liberty extending back to the beginning of time. According to this viewpoint, indigenous nations and peoples already possess fundamental human rights because those rights are an inherent aspect of their own existence.

Some might argue that the fact that indigenous peoples are fighting to win an explicit recognition of their inherent rights to exist, and be respected in their own homelands as distinct nations and peoples, is proof that they do not yet posses such rights. Indeed, an additional part of this argument is that indigenous peoples will not possess certain human rights until and unless all the member states of the world community unanimously “grant” indigenous peoples such rights through a document such as the draft U.N. Declaration on the Rights of Indigenous Peoples.

This argument can be traced back to the mentality of Western Christendom. The monarchies and nation-states of Western Christendom formulated the ideas and customs of international law on the basis of the ideas and practices of the ancient Greeks, the Roman Empire and their own Christian European customary practices in the 15th, 16th, 17th, 18th and 19th centuries. With the exception of Francisco de Vitoria, the 16th-century Dominican professor at Spain’s University of Salamanca, and some others, many international law thinkers of Christendom presumed that indigenous nations (which were at that time categorized as “heathens,” “pagans,” “infidels” and “barbarous”) were subject to the ideas – the mind and mental processes – of Christendom without their free consent.

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Beginning with the 1924 League of Nations Charter, the 1941 Atlantic Charter and the formation of the United Nations in 1945, a new era of international law began to emerge. Peoples previously held under by empires under colonial rule began to achieve liberation by being recognized as full-fledged nation-states and members of the international community.

American Indian nations saw this trend and decided to act. The Haudenosaunee leader, Deskaheh, made an unsuccessful effort to deal directly with the League of Nations in the 1920s. Then, in the 1970s, some traditional American Indian elders and activists began to bring their cultural, spiritual and political ideas into the international arena. Many of them wanted the world community to recognize that American Indian nations continue to possess an inherent right to be free nations based on an ancient liberty that long predated the Western Christendom’s genocidal invasion of the indigenous Western Hemisphere.

The indigenous elders and their supporters who went into the international arena in the 1970s understood and argued that their respective nations and peoples still had an inherent right to exist within their own homelands without being subjected to the domination of the United States. What they desired as human beings was for the international community to explicitly recognize an already existing inherent right. They were not seeking to be “granted” a right of self-determination they already possessed.

Over the ensuing decades, indigenous scholars and legal experts ran with that initial impetus. They eventually lifted language from two human rights documents – the U.N. Convention on Civil and Political Rights and the U.N. Convention on Economic, Social and Cultural Rights – to write Article 3 of the Declaration on the Rights of Indigenous Peoples.

Article 3 reads: “All Indigenous peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” Now, at the 2006 U.N. Permanent Forum on Indigenous Issues, the United States, Canada and Australia have illogically argued that this expression is in violation of international human rights law from which the language of Article 3 was taken.

The effort of indigenous peoples to win passage of the U.N. Declaration on the Rights of Indigenous Peoples is an effort to make the recognition of indigenous peoples’ inherent, collective right of self-determination explicit in international law. Making such recognition explicit is what the United States, Canada and Australia, in particular, are refusing to do because they have become accustomed to dealing with indigenous nations on the basis of the ancient and oppressive international law of Christendom and its doctrine of discovery.

The principle of Christian discovery and its accompanying principle of Christian dominion are the illegitimate foundational concepts of U.S. federal Indian law and policy. Native nations and peoples never freely consented to either of these two concepts. Indigenous peoples never consented to have the mentality of Christendom imposed on them in the name of “the law.”

Because the mentality of Christendom is in violation of our inherent rights as indigenous human beings, it needs to be overturned through the adoption of the U.N. Declaration on the Rights of Indigenous Peoples, including Article 3, which is premised on already existing human rights norms.

<i>Steven Newcomb, Shawnee/Lenape, is Indigenous Law Research Coordinator at Kumeyaay Community College on the reservation of the Sycuan Band of the Kuemayaay Nation; co-founder and co-director of the Indigenous Law Institute; a research fellow with the American Policy and Media Initiative; and a columnist for Indian Country Today.