Mark J. Bennett & Nicole Roughan have posted “Rebus Sic Stantibus and the Treaty of Waitangi” on SSRN. This is a very interesting paper, a response to the argument put forth by renowned legal thinker Jeremy Waldron that the doctrine of rebus sic stantibus could be applied to the Treaty of Waitangi to effectively abrogate it. In short, this argument goes, the passage of time and radically changed political realities could serve to render the Treaty unenforceable.
This, I think, is a similar argument to what the Vermont Supreme Court made in State v. Elliott and what the U.S. Supreme Court did in Sherrill v. Oneida Indian Nation — where the passage of time and changed political circumstances appear to render Indian treaty rights nugatory. In short, it’s troubling.
From the abstract:
The question of the continuing significance of the Treaty of Waitangi is one to which neither legal practice nor scholarship has offered a definitive answer. The question is often regarded as less legal than political; a question of intercultural justice to be pursued in the political realm. From within the law, however, the suggestion that the Treaty of Waitangi ought to be reassessed in light of modern circumstances was revived in 2005 when Jeremy Waldron, then University Professor at Columbia University, offered the international law doctrine of ‘rebus sic stantibus’ as a possible tool for analysis. This article responds to Professor Waldron’s suggestion that the Treaty might be considered overridden by a fundamental change in political circumstances. It first argues that the structuring logic which Professor Waldron advocates is a misreading of the signpost that international law offers towards the role of treaties in problems of intercultural justice. This article then presents a comparative assessment of United States practice relating to treaties, before examining tikanga Maori to consider how its core values might offer guidance on the continuing relevance of the Treaty. Finally, this article looks to contributions from political philosophy relating to the political morality of Treaty-based intercultural justice.
Turtle Talk 