Treaties have been around for a very long time. There’s a boundary treaty inscribed on stone between the city-states of Lagash and Umma dating back over 4,000 years. The Egyptians and Hittites concluded a comprehensive treaty concerning territorial demarcation and defence around 3,000 years ago.
Winding the clock forward, one of my favourites is the Treaty of Tordesillas of 1494 when the Pope carved the world up into two halves by drawing a line running down the middle of the Atlantic – the Spanish were to take one half, the Portuguese the other. It didn’t quite work out that way!
Treaties were important instruments of colonial policy. Contrary to popular mythology, the colonial era was not a simple matter of Europeans going in ‘boots and all’ and simply taking other people’s land; the British, French, Dutch and Germans often came to some formal arrangement with existing political hierarchies. The general policy was to ‘do a deal’ commensurate with the level of political and organisational sophistication of the peoples they were dealing with – and with an eye on rival colonial powers’ activities in the region. If the local people were at a ‘primitive’ stage of development lacking any trappings of statehood such as discernible governmental structures, the land was declared terra nullius: land that belongs to nobody. This was the situation in Australia. This is not to say that the colonial authorities did not extend protection to the indigenous people – the British in particular did – but rather that they did not feel compelled to enter into any formal understandings with the indigenes in the form of a signed document. At the other extreme, where there were definite state entities in existence, the practice was often to negotiate treaties leading to protectorate status, such as Cambodia with France in 1867 and Bahrain with Great Britain in 1868.
The International Court of Justice (ICJ) in Cameroon v Nigeria 2002 discussed 19th-century colonial treaty practice with particular reference to sub-Saharan Africa. Treaties (mostly ‘treaties of protection’, not to be confused with treaties creating protectorates) were concluded with tribal entities – some 350 with chiefs in the Niger Delta alone – but in the words of the Court, these treaties were “entered into not with states, but rather with important indigenous rulers exercising local control over identifiable territories”. There is a fundamental distinction being made here as a treaty in contemporaneous international law necessarily involved two state entities. (Nowadays, it can also involve non-state actors such as intergovernmental organisations, but the 1969 Vienna Convention on the Law of Treaties covers only those between state entities – a parallel 1986 convention to cover non-state entities never entered into force for lack of ratification.) A late example of such an agreement was the Treaty of Protection Between Great Britain and the Kings and Chiefs of Old Calabar 1884. But the ICJ emphasised the fact that these were not ‘treaties’ in the strict legal sense: they neither relied upon, nor conferred, statehood.
Anthony Aust, ex-legal adviser to the Foreign and Commonwealth Office, in his book ‘Modern Treaty Law and Practice’ (3rd edition 2013), describes the underlying nicety with reference to a treaty that is better known to readers of these columns than the one with the kings and chiefs of Old Calabar:
In the nineteenth century, agreements between imperial powers and representatives of indigenous peoples, such as the Treaty of Waitangi 1840 by which Maori chiefs ceded New Zealand to the British Crown, were often drawn in the same form as a treaty and described as such. But since the land occupied by such people was, at the time, not considered to be a state such agreements were not treaties, even if they had, and continue to have, effects in domestic law. (p. 16)
(We know all about the “effects in domestic law” bit, don’t we?)
There is the argument that the Declaration of Independence 1835 meant that NZ was a sovereign state at the time of the conclusion of the Treaty of Waitangi – but the 1835 Declaration held only for the North Island, the South Island at that time being terra nullius. The North Island was moreover hardly thought of as a single state entity – rather, more like a loose federation of tribal entities like the “kings and chiefs of Old Calabar” who, to again use the ICJ’s words, exhibited “no evidence of a central federal power”.
The Declaration had come with a request for British protection from the French; the Treaty subsequently went a step further by making the Maori subjects of the British Crown. This privilege was not extended to the people under the overwhelming majority of ‘treaties of protection’. A major consideration was the fact that White settlement was already underway, and was set to continue; it was accordingly inevitable that the place would become a clone of ‘the old country’, and it made sense to make everyone equal before the same – British – law. Everybody happy, right? ( - except the French).
The Treaty of Waitangi fulfilled an important function back in 1840, but was not a ‘treaty’ in the context of international law then, and it isn’t today. In fact, by the late 19th century it wasn’t really a legal entity in any sense of the term, Sir James Prendergast CJ (Chief Justice) describing it as “a simple nullity” in 1877. A hundred years later, it was put back on the political agenda with a vengeance.
If it isn’t a ‘treaty’, what is the Treaty? Without the Treaty of Waitangi Act 1975, it would probably have no standing at all. It’s a colonial-era agreement between the ‘kings and chiefs of old NZ’ and the Crown – the British Crown. Now there’s a powerful argument in favour of cutting the umbilical cord with ‘the old country’ once and for all – perhaps adopting the slogan “No more Crown, no more Treaty” would be just the shot in the arm the NZ republican movement could use.
It’s time for the Treaty of Waitangi to go the same way as the Treaty of Protection Between Great Britain and the Kings and Chiefs of Old Calabar – into the history books as an instance of how the world used to work – a world that is long gone. Now let’s for goodness sake move on!
Barend Vlaardingerbroek is associate professor of education at the American University of Beirut. He also has academic qualifications in science, arts/humanities and law. Feedback welcome at firstname.lastname@example.org.