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Treaty

Contexts

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.

COVENANTS OLD AND NEW

Had that first covenant been faultless, there would have been no occasion to look for a second to replace it. But God finds fault with his people when he says, "The time is coming, says the Lord, when I shall conclude a new covenant with the house of Israel and the house of Judah. It will not be like the covenant I made with their forefathers when I took them by the hand to lead them out of Egypt; because they did not abide by the terms of that covenant, and so I abandoned them, says the Lord. For this is the covenant I shall make with Israel after those days, says the Lord: I shall set my laws in their understanding and write them on their hearts; I shall be their God, and they will be my people. They will not teach one another, each saying to his fellow-citizen and his brother, "Know the Lord!" For all of them will know me, high and low alike; I shall pardon their wicked deeds, and their sins I shall remember no more." By speaking of a new covenant, he has pronounced the first one obsolete; and anything that is becoming obsolete and growing old will shortly disappear.

SOURCE: Hebrews 8:7–13, in The Revised English Bible with the Apocrypha.

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

THE TREATY OF WAITANGI (1840)

Victoria, the Queen of England, in her concern to protect the chiefs and subtribes of New Zealand and in her desire to preserve their chieftainship and their lands to them and to maintain peace and good order considers it just to appoint an administrator one who will negotiate with the people of New Zealand to the end that their chiefs will agree to the Queen's Government being established over all parts of this land and (adjoining) islands and also because there are many of her subjects already living on this land and others yet to come. So the Queen desires to establish a government so that no evil will come to Maori and European living in a state of lawlessness. So the Queen has appointed me, William Hobson, a captain in the Royal Navy to be Governor for all parts of New Zealand (both those) shortly to be received by the Queen and (those) to be received hereafter and presents to the chiefs of the Confederation chiefs of the subtribes of New Zealand and other chiefs these laws set out here.

The First

The chiefs of the Confederation and all the chiefs who have not joined that Confederation give absolutely to the Queen of England for ever the complete government over their land.

The Second

The Queen of England agrees to protect the chiefs, the subtribes and all the people of New Zealand in the unqualified exercise of their chieftainship over their lands, villages and all their treasures. But on the other hand the Chiefs of the Confederation and all the Chiefs will sell land to the Queen at a price agreed to by the person owning it and by the person buying it (the latter being) appointed by the Queen as her purchase agent.

The Third

For this agreed arrangement therefore concerning the Government of the Queen, the Queen of England will protect all the ordinary people of New Zealand and will give them the same rights and duties of citizenship as the people of England.

(Signed) W. HOBSON

Consul and Lieutenant-Governor

So we, the chiefs of the Confederation and of the subtribes of New Zealand meeting here at Waitangi having seen the shape of these words which we accept and agree to record our names and our marks thus.

Was done at Waitangi on the sixth of February in the year of our Lord 1840.

SOURCE: Literal translation of the Maori text of the Treaty as proposed by Sir Hugh Kawharu; quoted from Ian Brownlie, Treaties and Indigenous Peoples, pp. 6–7.

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.

Additional topics

Science EncyclopediaScience & Philosophy: Toxicology - Toxicology In Practice to TwinsTreaty - Linguistic Issues, Contexts, Covenants Old And New, The Treaty Of Waitangi, 1840, Jurisprudence