What is a colonial treaty? Questioning the visible and the invisible in European and non-European legal negotiations

Abstract

This article examines the use of the notion of ‘colonial treaties’ to describe the agreements that European states concluded with non-European polities from the late fifteenth century onwards. Given the absence of such a notion in international law treatises, the article first traces its genealogy before examining how it has influenced the scholarly understanding of legal negotiations between Europeans and non-Europeans. The article reflects, in particular, on the assumption that treaties signed with non-European polities were all ‘unequal treaties’ that revealed both the inequality of the political relations between Europeans and non-Europeans and that of their respective legal systems. Such an approach, it is argued, homogenises and simplifies the history of treaty relations between European and non-European polities. Finally, the article aims to remind us that the notions we use, often uncritically, have a history, and they are accompanied by presuppositions that influence the way we think about our subject of study and of which we need to be aware.