TOWARDS SHARED OWNERSHIP: PROPERTY,GEOGRAPHY, AND TREATY MAKING IN BRITISH COLUMBIA

In British Columbia, Canada's westernmost province, unresolved Aboriginal claims to land remain highly contentious. Since the early 1990s, a unique treaty negotiation process has sought to resolve questions about land ownership and establish a new relationship between Aboriginal peoples and the Crown. After almost two decades, the limitations of this treaty process are increasingly evident and answers to the land question remain elusive. This article examines this treaty‐making process through a property lens, focusing on how particular models of property are privileged by and produced through this approach to treaty. I argue that the treaty process, as currently structured, works to entrench dominant Western forms of property across Aboriginal territories in a highly separate and unequal manner, and as such, serves to reinscribe asymmetrical relations of power between Aboriginal peoples and the Crown. To a considerable extent, this asymmetrical approach to property making explains the lack of progress towards treaties. The final part of the article explores alternative approaches to treaty proposed by Aboriginal groups. I argue that these proposals, which reflect Aboriginal understandings of property, offer a new and more promising direction for treaty making. In particular, the emphasis on sharing lands and resources, as well as the wealth generated from these, provides a path to reconcile competing property interests and to build a new and more respectful relationship between the Crown and Aboriginal peoples. I suggest that the difficulties of treaty making in British Columbia reflect broader challenges associated with land restitution and reconciliation in settler colonies.     

The United Kingdom and the Negotiation of the 1969 New York Convention on Special Missions

During 1968–9, members of the United Nations, meeting in the Legal Committee of the General Assembly, negotiated a Convention on Special Missions, sometimes known as the New York Convention, setting out the privileges and immunities of ad hoc embassies between states. The negotiation was part of a process through which the UN sought to clarify the status and rights of official representatives, so that diplomacy could function with security and certainty. This article looks at the role of one leading power, the United Kingdom, in the talks. It explores how British interests were defined, the tactics used to secure them and how London came to terms with pressure from other states to redefine its approach. The focus is on the overall political thrust of the British negotiating position, as formulated mainly by the Foreign Office, rather than the detailed talks on such thorny issues as tax avoidance and diplomatic property. The article shows that, while London was keen to see a codification of diplomatic law, cold-war considerations made it less than enthusiastic about an upsurge in the number of special missions that the New York Convention might encourage.     

Stumbling towards Empire: The Shanghai Local Post Office,the Transnational British Community and Informal Empire in China, 1863–97

In the second half of nineteenth century, a small transnational British and foreign community grew up in the treaty ports scattered along China’s coast, a community literally caught between the great inner Asian empire of the Manchu Qing and British-dominated informal empire in Asia. Although scholars often contend that few major developments occurred in the foreign sector of the treaty port world until the very end of the nineteenth century, this article joins recent revisionist scholarship seeking to better understand the growth of this transnational treaty port community through a study of the Shanghai Municipal Council’s local post office in the context of informal empire prior to the rise of muscular Chinese nationalism in the early twentieth century.

As an institutional history of the virtually unknown local post office, this article is a study of the decades-long process by which the foreign settler community of Shanghai slowly built up the administrative capacity, trading networks and communications infrastructure of informal empire and semi-colonial order in the nineteenth-century treaty ports. The history of the local post office is largely unknown not because of its insignificance, but because we have not paid enough attention to the institutions that facilitated the emergence of transnational expatriate and settler communities throughout the world of British informal empire and the global and local influences that shaped them.     

The politics of Antarctic minerals: The Greening of white Australia

On 22 May 1989 the Australian Government announced that it would not sign the Antarctic Minerals Convention that had been concluded in June 1988. Australia had been a strong supporter of the minerals treaty approach to regulating Antarctic mineral development. This case study in Australian foreign policy examines four well known approaches to foreign policy making in order to explain Australia's volte face on the minerals treaty. It is concluded that domestic politics best explains Australia's decision and that students of Australian foreign policy need to pay more attention to the domestic determinants of the policy making process.     

Fantastic topographies: neo-liberal responses to Aboriginal land claims in British Columbia

This paper presents an analysis of the referendum on Native land claims that took place in British Columbia (BC) in the spring of 2002. The province's Liberal Government claimed that the referendum was needed in order to secure a public mandate for a set of negotiating principles that would breath new life into the supposedly stalled treaty process. Drawing evidence from government press releases, politicians' statements and media coverage, we argue that the BC Government and its supporters employed a discourse centred on neo-liberal economic logic in order to justify the exercise. Furthermore, we charge that this discourse relies on an erasure of the historical–geographical contexts of Native–newcomer relations in the province. By drawing on Cindi Katz's socio-spatial metaphor of 'topographies', we suggest that Native space in British Columbia needs to be understood as a series of situated and grounded experiences of colonialism and capitalist production. Then, extending the metaphor, we highlight the ways in which the referendum supporters' rhetoric contains a vision of future topographies of Native experience that adhere to the private property ethic of neo-liberal economics. We conclude that the politics surrounding the treaty process must be understood as a contest over the terms of Aboriginal citizenship and not merely as a conflict over the allotment of land and resources.     

2009 Cultural Heritage Legal Summary

Abstract

In 2009, nearly 55 years after the U.S. participated in the drafting of the first international convention to exclusively address the protection of cultural property, the U.S. ratified the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict. New developments concerning the U.S.’ implementation of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property through its legislation, the 1983 Convention on Cultural Property Implementation Act, continue to expand and test the parameters of the role of the U.S. in this international treaty regime. Finally, claims, recoveries, and restitution of looted, smuggled, and stolen cultural artifacts continued.     

The Sultan's Domain: British Cyprus' Role in the Redefinition of Property Regimes in the Post-Ottoman Levant

This article argues that property law is the main means through which Britain built its imperial sovereignty on Cyprus and in the post-Ottoman Levant. It charts the development of an official British expertise in Ottoman land legislation following the so-called affair of the Sultan's claims to properties in Cyprus. To settle this matter in the island which they had obtained to ‘occupy’ and ‘administer’ through a treaty with the Sublime Porte, colonial authorities were compelled to become conversant with the 1858 Ottoman Land Code. Hence, the article argues that because of its ambiguous status – a province occupied and administered by Britain but under the nominal suzerainty of the Sultan from 1878 to 1914 – Cyprus, as the first Ottoman territory to pass under direct Western rule, played a decisive role in the elaboration of a colonial knowledge in Ottoman land laws. And this, despite long-standing economic and political ties between Britain and the Ottoman Empire and exposure to other settings where layered land tenure systems prevailed. Published in treatises authored by British administrators of Cyprus, the legal expertise in Ottoman land law thus acquired was then transposed to other territories which passed under British rule, such as Palestine.     

Sharing the colonial burden: Treaty‐making and reconciliation in Hul’qumi’num territory

This article explores different understandings of reconciliation within the context of modern treaty making in British Columbia, focusing on the role of the BC treaty process in resolving the longstanding dispute between Aboriginal Peoples and the Crown over rights to land. Although the treaty process was created to reconcile competing interests in the land, Crown and Aboriginal negotiators often have contradictory understandings of how this reconciliation is to take place. Drawing on a case study of the Hul’qumi’num Peoples, a group of Coast Salish First Nations, I examine how different understandings and approaches to reconciliation impede progress at the treaty table. I conclude that progress towards treaty and reconciliation in this case will require coming to terms with the Hul’qumi’num territory's colonial history and geography, something that the current treaty process actively avoids, plus the crafting of a treaty agreement that allows for a more equal sharing of the burden that colonialism has created in this place. More particularly, meaningful reconciliation will require a fuller recognition of Aboriginal title and rights across the breadth of the territory and a commitment to meaningful compensation of Hul’qumi’num Peoples for the wrongful taking of their lands.     

The Third Review Conference of the Chemical Weapons Convention and beyond: key themes and the prospects of incremental change

States parties to the Chemical Weapons Convention (CWC) will convene for the Third Review Conference of the treaty in April 2013. With the destruction of chemical weapon stockpiles more than 75 per cent complete and ongoing changes in the scientific, industrial and security environment in which the CWC operates, some have argued that major adaptations in the implementation of the treaty are required. However, on the basis of regular participant observation at CWC meetings of states parties and extensive document analysis this article argues that changes in treaty implementation will be only of an incremental nature with the Organization for the Prohibition of Chemical Weapons (OPCW) taking on new tasks in the areas of chemical terrorism and safety and security, alongside traditional core areas of activity in CWC implementation such as verification of chemical weapon disarmament, non‐proliferation or, rather, non‐acquisition of chemical weapons, protection and assistance against the threat or use of chemical weapons, and international cooperation in the peaceful uses of chemistry. Taking into account the evolution of these areas of concern in combination with the consensus‐based institutional culture of the OPCW supports the expectation of only incremental changes being adopted at the Third CWC Review Conference. These expectations tie in with the findings of organizational analyses in other political contexts, which highlight the path dependency of many institutions once they are created.     

Wildlife trade, sanctions and compliance: lessons from the CITES regime

The international community possesses a powerful tool to control wildlife trade—the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). For over 20 years it has used trade sanctions as the cornerstone of a unique compliance system that has evolved through practice and secondary rules. This article discusses the mechanisms through which sanctions are imposed and assesses their effectiveness. The CITES compliance system has evolved largely in isolation from other environmental treaties, yet there are lessons that could be learned by other trade-related agreements that are in the process of developing their mechanisms to address non-compliance. CITES is particularly dependent on a sanctions-based approach because of the lack of funds to support capacity building. The article demonstrates through the national legislation project how sanctions used to back-up technical assistance can indirectly build capacity to implement the treaty. It concludes by arguing that guidelines on compliance currently under negotiation risk undermining the CITES compliance system and eroding the gains of the last three decades.     

‘That Moral League of Nations against the United States’: The Origins of the 1856 Declaration of Paris

The Declaration of Paris, signed by seven European powers on 16 April 1856, is almost forgotten today. Yet it marks the beginning of modern international law as we know it: multilateral treaties open for accession by all powers with the intention of creating new universal rules. Its extension of neutral rights to trade undisturbed in peace-time was a radical reversal of the centuries-old British tradition of extensive belligerent rights. But there is no convincing explanation why Britain signed this treaty and lobbied for its global acceptance. This article shows that the Declaration was a package deal in which Britain accepted broader neutral rights but gained the abolition of privateering. Privateering was no anachronism, but the linchpin of US strategy in case of a conflict with Britain. The Declaration of Paris closed most of the world's ports to privateers and thus ended the practice. The Declaration was also the first multi-lateral law-making treaty and marks the invention of the main instrument we use today to create international law.     

No and after: options for Europe

The French and Dutch ‘no’ votes in referendums on the European Union Constitutional Treaty have thrown the EU into turmoil. The messages from both referendums are that public dissatisfaction with European integration is widespread and there is a disjuncture between the views of citizens and those of elites. The original purpose of the process that produced the Constitutional Treaty was to bring the EU closer to its citizens. However, the text that was negotiated was an unwieldy document intended to satisfy diverse requirements but difficult to explain concisely. After the completion of negotiations some governments, for reasons of political expediency, took decisions to hold referendums on the treaty, but the future of The Treaty establishing a Constitution for Europe that took three years to complete is now uncertain. Furthermore, member states are divided about whether to press ahead with ratification after the two recent ‘no’ votes. What is the range of alternatives to member states if they wish to salvage the treaty or component parts? Finding a way through this current situation is the task the British government faces as it takes on the EU presidency from 1 July 2005.     

Ethnohistorical geography and aboriginal rights litigation in Canada: memoir of an expert witness

Since the early 1950s, evidence from ethnohistorical geography has played an important role in aboriginal rights claims and litigation in North America. I became involved in Canadian aboriginal and treaty rights litigation over 35 years ago. My participation has included several landmark cases: Regina v. Horseman (treaty rights), Delgamuukw v. Regina (Comprehensive title claim), and Regina v. Powley (Métis rights). Most of the evidence that I have presented over the years has dealt with various aspects of the changing spatial economies of First Nations and Métis communities from Ontario to British Columbia. The Hudson's Bay Company's vast archive has been the primary source for this data.     

《旧金山对日和约》再研究--关于其对西沙群岛、南沙群岛的处理及后果

西沙群岛、南沙群岛主权本属中国,第二次世界大战期间被日本占领,日本战败后理应由中国收回,但1951年美国起草和主导签署的<旧金山对日和约>只表明日本放弃这些岛礁,未明确主权归属问题,为的是防止中国(大陆)从<对日和约>中得出对中国主权有利的结论来.<对日和约>如此处理主权问题为日后两群岛"主权未定"论埋下了祸根.     

Gildas and the ‘grievous divorce from the barbarians’

This article examines a specific phrase from Chapter 10 of Gildas's De Excidio Britonum. It suggests that to date, this phrase (lugubre divortium barbarorum) has not been properly understood or translated. In a new interpretation, the article argues that it refers to the breaking of the treaty between the Britons and Saxons mentioned in Chapter 23 of De Excidio Britonum. This new interpretation expands our understanding of Gildas's attitude towards barbarians and the British church.     

‘In aid of civil power’: The colonial army in Northern India,c.1919–42

India's tribal northeast continues to be a footnote in national and international historiography. Influenced by James C. Scott's recent characterisation of the non-state hill peoples of Zomia and their deliberate evasion of subject status, this article reappraises the 1826 treaty between the British political agent and Khasi leader U Tirot Sing, and the subsequent Nongkhlaw massacre. It further explores a set of British expectations of the hills as a potential site for missionisation and white colonisation. In this way, it asserts the purchase of Scott's theories, but argues for the further potential of micro-history and the colonial archive to render indigenous histories more visible.     

The puzzle of trusting relationships in the Nuclear Non-Proliferation Treaty

A successful outcome of the 2010 Nuclear Non-Proliferation Treaty (NPT) Review Conference is widely seen as vital if the NPT is to continue to play an important role in preventing nuclear proliferation. Focusing on the concept of trust, this article offers a novel perspective on the treaty and its future prospects. Too often dismissed as impossible or dangerous in international politics, trust has received little attention from both academics and practitioners. This article challenges this predominant view by making a case that the NPT establishes and embodies a series of trusting relationships between states. Trusting relationships are analysed as a way in which states relate to each other, taking into account both interests as well as promises. It does not make the case that once such relationships are established they will remain constant, but rather that trusting relationships are dynamic. They can be strengthened or weakened depending on the choices of actors. The article shows how trusting relationships have underpinned the NPT from its beginning and charts their evolution by reference to three key sets of relationships. These are, first, the relationships between the recognized nuclear weapon powers and the non-nuclear weapon states; second, those among the recognized nuclear weapon states; and third, those between the NPT signatories and those states remaining outside of the treaty. For each set of relationships the problems and issues that have eroded trust are outlined and the steps that might lead to the overcoming of these strains and the strengthening of the trusting relationships are discussed. By understanding the NPT through the prism of trust, the article sheds new light on both the achievements of the treaty as well as its potential fragility. At the same time, such an analysis opens up the directions of policy crucial to strengthening the treaty at the Review Conference and beyond.     

Maritime Raiding,International Law and the Suppression of Piracy on the South China Coast, 1842–1869

This paper explores how piracy was defined and eventually reduced in the South China seas between 1842 and 1869. In the early 1840s, a large increase in maritime raiding led British agents to complain about the unwillingness of Qing officials to suppress disorder and drove the Hong Kong administration to propose its own solutions. British metropolitan officials nonetheless rejected many of these measures, arguing that they ran counter to established international maritime laws that made the Qing responsible for policing Chinese waters. Attempts were made to write this responsibility into the treaty which followed the Arrow War in 1860, but it was changes in the Qing state in the 1850s and 1860s which led Qing officials to treat small-scale maritime raiding as seriously as that of large rebel pirate fleets. The new Imperial Maritime Customs Service created an incentive to prevent smuggling and piracy which could deter trade and hence decrease customs revenue. The case suggests, first, that the large reduction in maritime raiding rested on Sino–British compromise and, second, that Britain used international maritime laws as much to control the expansive ambitions of Hong Kong as to encourage changes in Qing practices.     

2010 cultural heritage legal summary

Abstract

The year 2010 was a relatively quiet one for legal developments with respect to archaeological heritage. Some court decisions that were expected this year, such as that concerning foreign sovereign immunity for artifacts on loan from Iran to the Oriental Institute of the University of Chicago, did not materialize, while other disputes remain on appeal, such as that involving the disposition of 500,000 gold and silver coins taken from an early 19th century Spanish shipwreck by Odyssey Marine. One of the most closely watched cases, the trial in Italy of the former J. Paul Getty Museum curator, Marion True, ended inconclusively when time ran out for the prosecution. Nonetheless, recovery and restitution of cultural objects that were brought illegally into the United States continued, as did controversies concerning the bilateral agreements concluded between the United States and other nations, pursuant to the 1983 Convention on Cultural Property Implementation Act, the United States' legislation implementing the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. The following review focuses on legal developments primarily in the United States, as the United States participates in international treaty regimes to protect cultural heritage.     

The Inspector General's Last Prize: The Chinese Native Customs Service, 1901–31

The roles of the Chinese Maritime Customs Service (CMCS), particularly the role of the inspector general (IG) have most frequently been discussed in the context of Sino-foreign relations. The relationship between the CMCS and the Chinese Native Customs establishment has seldom been studied. It is worth noting how, after the Boxer Uprising, the CMCS, dominated by the British, successfully, and much more quietly, extended its power to the Chinese domestic arena through its assumption of control over the Native Customs Service. The thirty-year period during which the CMCS controlled the Native Customs before the latter was abolished in 1931 actually tells us a great deal about the nature of the CMCS and the limits it faced to the exercise of its power. This paper's case study of the Native Customs provides a wider opportunity to re-examine the structure of the Chinese Maritime Customs Service on the ground, in localities away from Shanghai and the more visible world of the treaty ports.