Ka Wai Ola - Office of Hawaiian Affairs, Volume 9, Number 2, 1 February 1992 — The affect of law on how a nation treats its indigenous people [ARTICLE+ILLUSTRATION]

The affect of law on how a nation treats its indigenous people

Mai Wakinekona

By Paul Alexander Washington, D.C. Counsel for OHA

The concepts of the law of nations, known today as International Law, have often been discussed for their implications in obtaining justice for Hawaiian Natives — restoration of governing powers and return or compensation

for the loss of nationhood and the loss of vast lands and other resources. Some observers have advocated using international forums as the way to obtain results; others have questioned whether the international legal system ean provide any meaningful relief. At a recent workshop for OHA trustees, part of an evolving educational process, some of these questions were addressed. Without going into the details of the evolution of International Law several important generalizations ean be made.

The Law of Nations, was just that — rules that rested on consensus including the eeonomie and power realities of the time. It regulated relations between nations and, for the most part, did not focus on the rights of people who lived within those nations. As a general rule, nations would not inquire or become involved with how any particular nation treated people who were in its control. In the last 50 years, there has been a dramatic change. That change is apparently traceable to Germany's annililation of Jews, gypsies, and other distinct populations under its control; the

world's reaction in the Nurenberg trials; the scope of the United Nation's mandate; and in particular the 1951 Universal Declaration Of Human Rights. This change has been the recognition of the rights of people within a particular nation over whieh the world community asserts some sort of responsibility or supervisory role.

This development has been extremely important for indigenous people, whether any particular group has been recognized as a dependent nation or not. This change has provided (under the auspices of the United Nations) organizational forums to pursue rights and opportunities to participate in the development of international norms (laws) relating to rights of indigenous peoples. However, it is critical to point out that — even with the evolution of International Law — enforcement remains an issue of consensus. There is no current mechanism to enforce international law in the sense that domestic law is enforceable. No court ean issue orders that nations are obligated to follow. They must voluntarily agree to do so.

That is not to say that International Law is not a force. In some situations it is an effective pressure point to eompel nations to respect the rights of indigenous people. In many senses, Inteinational Law and its organizations become a focal point to utilize world public opinion and the support of other nations to force a particular nation to comply with the rights of people. This has been successfully done in protecting the survival of the indigenous natives (the Miskito Indians) during the

Sandanista/Contra military conflict in Nicaragua, and the Yamnonani people in the Amazon region of Brazil and Venezuela. Massive publicity campaigns, world leaders, and sister-nations of central and South America all played an important role. Ultimately, however, it was Nicaragua, Brazil, and Venezuela that eaeh made the statutory or constitutional changes necessary to provide vindication for rights of the indigenous people within their nahonal borders.

The applicability of International Law to the indigenous people of Hawai'i is unique. Unlike many other indigenous people, the people of Hawai'i were citizens of the Kingdom of Hawai'i whieh was, in turn, a recognized, sovereign nation. The Kingdom of Hawai'i had diplomatic and treaty relations with many other nations at the time of the overthrow of Queen Lili'uokolani. At that time the Law of Nations was to regulate relations between nations. What rules should have been applied internationally (regardless of the failure of enforcement) is an important part of the political and moral case of Native Hawaiians.

In modern times Native Hawaiians are under the de facto jurisdiction of the United States. Unlike Brazil, Venezuela, and Nicaragua, the United States, with the end of the Cold War, is clearly the most powerful nation on the world scene. Until the case is made to world public opinion, it is impossible to tell how effective International Law and opinion will be in securing redress for Native Hawaiians from the United States of America.