University of Minnesota




Authorities and Precedents in International and Domestic Law for the Proposed American Declaration on the Rights of Indigenous Peoples, Inter-Am. OEA/Ser.L/V/II.110, Doc. 22 (2001).


 

SECTION SIX

GENERAL PROVISIONS

Article XXII. Treaties, Acts, agreements and constructive arrangements

Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and constructive arrangements, that may have been concluded with states or their successors, as well as historical Acts in that respect, according to their spirit and intent, and to have states honor and respect such treaties, agreements and constructive arrangements as well as the rights emanating from those historical instruments. Conflicts and disputes which cannot otherwise be settled should be submitted to competent bodies.


I. INTERNATIONAL AUTHORITIES AND PRECEDENTS

1. Draft United Nations Declaration on the Rights of Indigenous Peoples (UN 1994)

Article 36: "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. Conflicts and disputes which cannot otherwise be settled should be submitted to competent international bodies agreed to by all parties concerned."

2. C 169, Convention on Indigenous and Tribal People (ILO Convention 1989)

Article 12: "The peoples concerned shall be safeguarded against the abuse of their rights and shall be able to take legal proceedings, either individually or through their representative bodies, for the effective protection of these rights. Measures shall be taken to ensure that members of these peoples can understand and be understood in legal proceedings, where necessary through the provision of interpretation or by other effective means."

3. Charter of Civil Society (CARICOM)

Article XI: Rights of Indigenous Peoples

"The State recognizes the contribution of the indigenous peoples to the development process and undertake to continue to protect their historical rights and respect the culture and way of life of these peoples."

4. Vienna Convention on the Law of Treaties (1969)

-Article 26: "Pacta sunt servanda

Every treaty in force is binding upon the parties to it and must be performed by them in good faith."

-Article 27: "Internal law and observance of treaties

A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46."

-Article 46: "Provisions of internal law regarding competence to conclude treaties

1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.

2. A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith."

5. Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities (UN 1990)

Article 8(1): “States shall fulfill in good faith the obligations and commitments they have assumed under international treaties and agreements to which they are parties.”

II. DOMESTIC AUTHORITIES AND PRECEDENTS

6. Canada

- Canada Constitution Act of 1982

Part II: "Rights of Aboriginal Peoples of Canada

Article 35: (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit, and Metis peoples of Canada.

(3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired.

(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons."

- The Royal Proclamation (1763)

"And whereas great Frauds and Abuses have been committed in purchasing Lands of the Indians, to the great Prejudice of our Interests. and to the great Dissatisfaction of the said Indians: In order, therefore, to prevent such Irregularities for the future, and to the end that the Indians may be convinced of our Justice and determined Resolution to remove all reasonable Cause of Discontent, We do."

- Canadian Charter of Rights and Freedoms (1982)

Article 25: "The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including

(a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and

(b) any rights or freedoms that may be acquired by the aboriginal peoples of Canada by way of land claims settlement."

7. United States

United States Constitution

Article VI: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

 



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