Treaty

Examining how the concept of treaty developed as a basic form of inter-and cross-cultural handling requires consideration of its ideological affinities to the concept of trade. These affinities are lexically quite striking, more so in the French words for treaty and trade, traité and traite, respectively. This is not surprising when one recalls how the conclusion of treaties was an important means through which Western trade expanded, initially in the East and then globally. During this period we saw the development of the terms "treaty port" and "treaty national." Treaty ports were established all over the coasts of East Asia and along navigable waterways too, through treaties between Western nations and the rulers of China, Japan, Korea, and Siam. The treaty ports regime allowed for the establishment of self-administered foreign settlements for the purposes of trade, settlements that enjoyed varying degrees of autonomy. The main provision was that foreign or treaty nationals enjoyed extraterritoriality and were therefore deemed to be outside the jurisdiction of the country they actually resided in, thus being legally accountable only to their respective consular courts. Though treaty ports and nationals were not limited to the east coast of Asia, and could be found also in the Ottoman Empire and Morocco, it was in China that they reached unparalleled proportions to the bitterness of the local elite that was forced to capitulate. There was a time that up to eighteen countries, not only Western powers but also Mexico, Brazil, and Peru, signed such treaties with China, in the first instance for the promotion of trade, but in the longer term infiltrating the region culturally and politically through missionaries and consuls.

In the sense of "worldly handling," treaties were also used as an instrument for colonial expansion. Note, parenthetically, that formal treaties were not always employed, especially with regard to the colonization of Africa, or the Spanish conquests of America, which were "legalized" through the Papal Bull Inter caetera (1493). The latter gave the "illustrious sovereigns" of Castile the exclusive right to acquire all the land they had discovered or might discover in the future one hundred leagues west of the Azores and Cape Verde islands. In terms of local instruments, the Spanish morally and practically dispossessed indigenous peoples through a legal caricature, the Requerimiento, a Eurocentric and Christocentric document on the history and state of the world, read to the natives and asking them to accept it by submitting to Spanish sovereignty or be made to submit. Nonetheless, treaties with the natives were often employed by colonial powers when commercial, political, or military interests so demanded. Such treaties were textually very basic, written in paternalistic discourse, and indirectly legitimated colonial occupation and governance in exchange for vague promises of protection of native life, possession, and culture. Their current "anomalous" status in terms of legal claims and retrospective enforcement has become a hotly contested issue in, among other places, North America, Australia, and New Zealand.

Perhaps a paradigmatic treaty between a colonial power and an indigenous community is the Treaty of Waitangi (1840), concluded between Britain and the Maori chiefs of New Zealand (see sidebar). This treaty is interesting because it has been retrospectively enforced, albeit reluctantly and selectively, through a 1975 New Zealand Act of Parliament and currently forms the basis of a number of claims by Maori groups for partial restitution and nondiscrimination. Still, the treaty's terms and processes expose the catachrestic political environment within which colonial treaty-making was taking place. For a start, there are significant differences between the English and the Maori texts of the treaty as well as differences in the understanding of the concepts used within. The English text included a provision that the Maori chiefs were "claiming authority over the Tribes and Territories which are specified after our respective names," a passage that is missing from the Maori text. The Maori translations for "government" (kawanatanga) did not have the Western conception of the exercise of sovereignty, nor did "rights and duties" (tikanga) have the notion of the pursuit of individual claims and obligations outside the remit of local custom (see www.archives.govt.nz/holdings/treaty_frame.html). There are also variations between the original Maori text and the eight copies in Maori opened for signature. The more than five hundred signatures to the treaty were a "cumulative process," added by different chiefs on different copies at different locations in New Zealand. In addition, not all copies bear a government seal. Some chiefs signed on unknown dates and without any witnesses. Some signatories have not been identified. Others signed without any clarification on the text of what representative authority they had, if any. The "Confederation of the Chiefs" referred to in the treaty was instigated by the British Resident in 1835 and only covered the north of the country. What is more, some important chiefs and tribes rejected the treaty and refused to sign, yet found themselves bound by it. As a leading legal authority implies, even using the most "generous" and "creative" interpretation of the provisions of the treaty, the Maori people cannot overcome the biases of the initial colonial policy through which they were "legally" dispossessed of their lands and polities (Brownlie). Ironically, recent human rights treaties of which they are not a party may provide a better basis for recognition

of their claims than the treaty they signed as "independent" and "sovereign" people. In practice, of course, indigenous groups use a combination of the original bilateral and recent multilateral treaties to support their claims.