Tools of imperialism or sources of international law? Treaties and diplomatic relations in early modern and colonial Southeast Asia

Abstract

The history of treaty-making, diplomacy, and international law has traditionally been written from Eurocentric perspectives, but since the middle of the 20th century, Southeast Asia has attracted relatively much attention because of the region's importance for the 17th-century Dutch jurist Hugo Grotius. More recently, however, the interest in Southeast Asia's role in the history of international law and diplomacy in the early modern period has become more oriented toward understanding the dynamics of international relations and cross-cultural diplomacy in Southeast Asia itself, rather than focusing on the region's role in European legal and intellectual history. The prolific treaty-making and other diplomatic activities of the Dutch East India Company (VOC) during the 17th and 18th centuries have been the object of several studies, highlighting how the company adopted Asian practices of statecraft and at times functioned as a traditional ruler, tributary or stranger-king, rather than as an omnipotent colonial power. Moreover, several recent studies have expanded the study of diplomacy and treaty-making in Southeast Asia to imperial powers other than the VOC and into the 19th century. With regard to the practice of treaty-making during the colonial era, three main themes in the current state-of-the-art are identified: 1) Southeast Asian and inter-cultural perspectives on treaties and treaty-making; 2) the question of mutual consent or coercion and violence in treaty-making; and 3) discrepancies between Asian and European treaty texts and biases in printed and digitised compilations of treaties.

1 TREATY-MAKING AND INTERNATIONAL LAW IN GLOBAL HISTORICAL PERSPECTIVE

Since medieval times, treaties, in the sense of formal written agreements between states or sovereigns, have been a major source of international law and a key instrument of international relations. Historically, as well as today, treaties have regulated inter-state relations in crucial areas such as war and peace, security, sovereignty, jurisdiction, trade and territorial control. As international legal and political documents of fundamental importance, treaties have often been the subject of study in histories of international law, diplomacy, and international relations.

As part of the history of diplomacy and international law, the study of treaty-making has traditionally been profoundly Eurocentric, geographically, politically and conceptually. In the traditional narrative, international law and the modern international system of independent states originated in medieval Europe and crystallised with the Peace of Westphalia (1648), which established the key elements of international relations, such as respect for sovereignty, territorial integrity, non-interference, diplomacy, and negotiation as the primary means of resolving conflicts between states. Treaty-making and the principle of pacta sunt servanda (‘agreements must be kept’, meaning that treaties were meant to be binding) were fundamental parts of this system, which spread from Europe to the rest of the world as European colonial powers expanded overseas (Koskenniemi, 2011).

For most of the 19th and 20th centuries, scholars and practitioners of international law in Europe tended to view the spread of European models of treaty-making and international relations as a benevolent civilising process (Koskenniemi, 2002). However, there were also dissenting voices in Europe who drew attention to the injustice and hypocrisy of the European attempts to impose their standards of international law and civilisation on the rest of the world (Fitzmaurice, 2017; Pitts, 2018). From the 1920s, Chinese nationalists raised a more systematic criticism as Sun Yat-sen pioneered the use of the term ‘unequal treaties’ (bupingdeng tiaoyu) to describe the injustice and humiliation of China's treaty relations with imperial powers in the 19th and early 20th centuries. Subsequently promoted by Mao Zedong and other Chinese Communist leaders, the concept gained widespread acceptance not only among Marxist historians but also among historians in general (Wang, 2005). The conceptual framework of unequal treaties still provides an influential means of understanding treaties as a key tool of modern imperialism (Craven, 2005; Peters, 2018).

Coincidentally, around the same time as the term unequal treaty was established in China, antiquarians and librarians in the United States began to use the term ‘colonial treaty’ to describe the treaty relations between British colonisers and native American nations in the 17th and 18th centuries. The term soon spread to other colonial contexts, and from the 1920s onward, the notion that there was a special category of treaties that could be described as colonial was established among historians and archivists. From the 1930s, Marxist historians began to use the terms colonial treaty and unequal treaty interchangeably, which laid the foundation for the current understanding of the term colonial (or imperial) treaty as more or less synonymous with inequality and subordination (Belmessous, 2022).

For all their critical potential, concepts such as unequal or colonial treaties did little to challenge the fundamental Eurocentrism of the traditional narrative of the history of international law. Both notions tended to reinforce the impression—firmly established since the 19th century—that Asian and other non-European actors had no significant influence on the development of international law and that they, for the most part, were not international actors in their own right. Moreover, the contents of the thousands of treaties that were concluded in the course of the European overseas expansion from the late 15th century were seen as having been more or less dictated by the imperial powers, often, as critics pointed out, by means of ethically dubious practices such as military violence, gunboat diplomacy, coercion, manipulation, bribery, or fraud. The idea that non-European actors and their diplomatic concepts and practices could have had an impact on the development of international law or the contents of the treaties was rarely considered by scholars of international law before the middle of the 20th century.

2 PIONEERING STUDIES OF TREATY-MAKING IN SOUTHEAST ASIA

In the 1950s, the Eurocentric paradigm began to be challenged as decolonisation stimulated some pioneering scholars of law and history to investigate the role of non-European actors and regions in the development of international law more systematically. Much of the interest focused on Southeast Asia because of the region's importance to the 17th-century Dutch lawyer and scholar Hugo Grotius, who was (and is) widely recognised as one of the founding fathers of modern international law (Borschberg, 2011; Lauterpacht, 1946).

Among the first to highlight the influence of Southeast Asian concepts and practices on Grotius's writings was the Polish-British lawyer and scholar Charles Henry Alexandrowicz, who taught law at the University of Madras in the 1950s and published several books on the history of treaty-making and international law in Asia and Africa (Alexandrowicz, 1960, 1967, 1973; Alexandrowicz, Armitage and Pitts, 2017). In his works, Alexandrowicz highlighted how non-European (particularly South and Southeast Asian) concepts and practices contributed to Grotius's works and to the development of international law during the early modern era in general. Challenging what later became known as the ‘Westphalian myth’ (Osiander, 2001), he argued that the origins of international law should be sought in the encounters between European and Asian practices of treaty-making and diplomacy rather than in the writings and debates of European lawyers and scholars. He also demonstrated that Asian actors and practices had a fundamental impact on the development of international law before the turn of the 19th century, for example, with regard to legal concepts, diplomatic practices and the establishment of treaties as a major source of international law (Alexandrowicz, 1967).

Alexandrowicz's interest in treaty-making and international law in Asia focused on the early modern period, and he identified a break around 1800, after which, he argued, the rise of legal positivism in Europe rendered the contribution of Asian countries to the development of international law insignificant (ibid, p. 2). Until recently, most historians of international law in Southeast Asia have shared this view, and as the survey in the next section demonstrates, most studies in the field to date have dealt with the 17th and 18th centuries.

However, one of Alexandrowicz's younger contemporaries, Alfred P. Rubin, extended his investigation The International Personality of the Malay Peninsula (Rubin, 1974) some decades into the 19th century, studying British treaty-making with the Malay Sultanates in present-day Malaysia and Siam (Thailand) up until around 1830. Rubin was less convinced than Alexandrowicz about the Malay contribution to international law, concluding instead that the lack of foresight and flexibility on the part of the Malay rulers made them susceptible to British dominance or ‘paramountcy’ in the vocabulary of the Victorian colonisers. Rubin also pointed to the hypocrisy of how the British and other Europeans used international law to justify ‘a multitude of legalistic generalities acts’ that did not conform with the rules of international law as it was upheld in Europe. In doing so, he echoed some of the criticism waged by anti-colonial intellectuals in Britain and elsewhere already during the 19th century (e.g. Stanley, 1865; Maxwell, 1878; see further Fitzmaurice, 2017). The Dutch scholar Gertrudes Johannes Resink took a similar position in an article originally published in Dutch in 1960, pointing to the weak legal foundations of the Dutch claims to sovereignty over the Dutch East Indies in the 19th and 20th centuries. He also criticised Dutch international lawyers and scholars during the late colonial period for ignoring the dubious character of many of the treaties on which the Dutch claims were based (Resink, 1968 [1960]).

Directly answering to Alexandrowicz's call for more detailed studies of pre-colonial concepts of treaty-making and inter-state relations in Southeast Asia, Leonard Andaya (1978), analyzed indigenous treaty traditions in South Sulawesi and the problems that arose when the Dutch East India Company (VOC) introduced European treaty conceptions in the 17th century (Andaya, 1978). Trying to understand the practice of treaty-making from a Southeast Asian perspective as opposed to a European perspective, he concluded that the treaty relations between the VOC and the polities of South Sulawesi were characterised by conflicting expectations, misinterpretations and frustrations that repeatedly led to mutual recriminations and war. The treaty relations of the early modern period also cast a long shadow and contributed to conflicts and misunderstandings in Dutch–South Sulawesi relations up until the beginning of the 20th century, according to Andaya.

After these pioneering studies, all of which were published in the 1960 and 1970s, interest in treaty-making in colonial Southeast Asia declined and, with the exception of a few short publications that focused on particular treaties, such as the 1667 Treaty of Bongaya between Goa (South Sulawesi) and the VOC (Andaya, 1981, pp. 100–116), the 1755 Treaty of Giyanti between Mataram (Java) and the VOC (Resink, 1979), and the 1855 Bowring Treaty between Siam and Great Britain (Terwiel, 1991), few historians of Southeast Asia put treaties or treaty-making at the center of their study for most of the remainder of the 20th century. Neither did Southeast Asia figure prominently in Jörg Fisch's comprehensive history of the European expansion and international law from 15th to the 20th century (Fisch, 1984). The shrinking interest in the history of treaty-making and international law in Southeast Asia was probably a reflection of the general decline in the interest in imperial history, which by the 1980s had come to be seen as a dying, if not dead, field of study imbued with conservatism and imperial nostalgia (Kennedy, 2015a, p. 7).

3 NEW HISTORIES OF INTERNATIONAL LAW AND DIPLOMACY IN SOUTHEAST ASIA

When interest in the history of imperialism resurfaced in the last years of the 20th century, the main focus of study was social and cultural history, much in contrast to the traditional focus of imperial history on economic and political developments. Influenced by the rise of postcolonial studies and global history, the so-called new imperial history from the 1990s onward gave more attention to cross-cultural encounters, translation, and the circulation of ideas and knowledge. In doing so, historians aimed to provide a more nuanced, polyphone, and multi-faceted understanding of imperialism and colonialism by studying entanglements and mutual influences and to relate detailed local microhistorical studies to global processes and dynamics (Howe, 2010).

Simultaneously, interest in the history of international law also rose under the influence of postcolonial studies and the global turn in the humanities and social sciences. The most obvious manifestation of these trends was the rise of so-called Third World approaches to international law (TWAIL). The common denominators of these diverse approaches were a critical stance against Eurocentric interpretations of international law and a focus on the colonial and unequal foundations of modern international law, which, according to TWAIL scholars, contributed to the continued subordination of the Third World and perpetuated global economic, social and political injustice (e.g. Anghie, 2007; Chimni, 2006).

Around the same time, another line of criticism against the traditionally Eurocentric narrative of the history of international law emerged as part of the increasing interest in global history and its institutionalisation around the turn of the millennium. Several influential studies published in the first decades of the 21st century challenged the traditionally Eurocentric narrative of the history of international law and instead took the position that modern international law above all had developed as a result of global interaction involving both Europeans and non-Europeans, particularly in the early modern period (e.g. Benton, 2002, 2010, Pitts, 2012; Fassbender et al., eds, 2012; Benton and Ross, eds, 2013; Fitzmaurice, 2014). In that context, the pioneering influence of Alexandrowicz was often recognised, although few scholars shared his positive view of the relations between Asian and European actors before the turn of the 19th century (e.g. Benton & Clulow, 2015, pp. 81–82; Alexandrowicz, Armitage and Pitts, 2017; Pitts, 2018, pp. 16–17).

In the context of these historiographical developments, the question of Southeast Asia's role in the history of international law and the region's influence on Grotius once again came to fore. An influential early intervention was Edward Keene's book Beyond the Anarchical Society (2002), which set out to bridge the division in international relations between, on the one hand, a European system of states and, on the other hand, a non-European and imperial one. In doing so, Keene highlighted how Grotius's defense of unequal treaties, his justification of the colonisation of sparsely populated territories, and his understanding of sovereignty outside Europe as divisible and gradable, all provided the VOC and later imperialists with a ‘flexible conceptual vocabulary’ that was especially useful for advocates of colonial domination (Keene, 2002, p. 95).

In her study of the early Dutch expansion in Southeast Asia, Martine Van Ittersum (2006) concurred with Keene with regard to Grotius's view of sovereignty and his usefulness for an imperial agent. She also highlighted the importance of the developments in Southeast Asia, filtered through VOC reports, on Grotius writings, particularly his arguments for the freedom of navigation in Mare Liberum. The theme was further developed by Peter Borschberg (2011), who concluded that Grotius in fact had very little knowledge about treaty-making and other aspects of international law in Southeast Asia, and that his ideas about sovereignty and the freedom of navigation had little to do with the ideas and practices that were prevailing in the region at the time. Borschberg thus explicitly refuted Alexandrowicz's suggestion that Grotius was inspired by Southeast Asian practices when he formulated his famous doctrine of the freedom of the sea (Borschberg, 2011; idem, 2021: 397; cf. Alexandrowicz, 1967, p. 65; Anand, 1983; cf. also Benton & Clulow, 2015; Benton, 2023 and their concept of ‘interpolity law’ as an alternative framework for analysing law and diplomacy in cross-cultural settings).

In their investigations of Grotius's role as a defender of imperialism, Keene, Ittersum and Borschberg all highlighted the role of treaties as a central instrument of imperialism, which, combined with the notion of divisible sovereignty, enabled the VOC to justify their claims to sovereignty or suzerainty over Asian rulers. A similar argument was put forward by Inge Van Hulle (2016) in her investigation of Grotius' defense of unequal treaties, which, combined with his emphasis on the principle of pacta sunt servanda, served to legitimate Dutch imperialism and the VOC's usurpation of sovereignty in Southeast Asia. The result was that the Dutch company became a prolific treaty-maker—‘an empire by treaty par excellence’, as put by Arthur Weststeijn (2015: 19)—concluding thousands of treaties in South and Southeast Asia in the course of the 17th and 18th centuries (Heeres & Stapel, 1907–55).

Simultaneously with the rising interest in Southeast Asia's role in the development of international law, there was an increase in the number of studies dealing with the history of cross-cultural diplomacy in the region. Again, these were part of a trend toward more global perspectives, which led to the rise of the field of new diplomatic history. Influenced by the cultural turn in history, new diplomatic history emerged as a field of study, first in the United States in the last decades of the 20th century and from the beginning of the 21st century in continental Europe. However, the new field of study was not confined only to Europe or the United States, and several studies focused on the diplomatic relations between European and non-European courts, mainly in the early modern period. In contrast to the traditional focus of diplomatic history on international relations and foreign policy, the new diplomatic history zoomed in on the cultural aspects of diplomacy, including personal relations, translation, and inter-cultural communication. It also highlighted the role of informal actors and intermediaries, such as translators, scribes, and secretaries, and the significance of non-textual aspects of diplomatic relations, such as ceremonies, rituals, sound, gifts, and displays of hospitality and friendship (Amirell, 2022; Mori, 2019; Sowerby, 2016).

With regard to Southeast Asia, the prolific diplomatic and treaty-making activities of the VOC were a particular focus of interest (e.g. Vos, 1993, Somers, 2001, Knaap and Teitler, eds 2002, Locher-Scholten and Rietbergen, ed. 2004, Ruangsilp, 2007, Bertrand 2011; Feddersen, 2017; see Clulow & Mostert, 2020 for a survey). While earlier studies of the company had focused mainly on the its territorial expansion, trade, shipping patterns, and organisation (e.g. Blussé, 1996; Van Leur, 1955; Boxer 1965; Volker, 1954), studies from around 2000 onward put greater emphasis on the interaction between the VOC and Southeast Asian actors, including both instances of conflict and violence and more peaceful diplomatic relations and negotiations. The Dutch historian Leonard Blussé was a pioneer in this turn toward diplomacy in studies of the VOC; in an inaugural lecture, published in 1999, he argued for a ‘New Diplomatic History’ of the international relations in Asia based on Western and Asian sources (Blussé, 1999, 2001).

In that vein, scholars, among other things, revisited Andaya's 1978 study of treaty-making between the VOC and South Sulawesi. Carl Fredrik Feddersen, in his doctoral dissertation about the VOC's interaction with Makassar in the 17th century, challenged Andaya's emphasis on incommensurability and misunderstandings in the Dutch–South Sulawesi relations, arguing instead that treaty relations were characterised by a dynamic give-and-take process and communication within a shared conceptual framework with realistic (if often divergent) expectations on both sides (Feddersen, 2017, pp. 163–173).

Feddersen's perspective illustrates a broader trend toward more interactive perspectives and an increase in interest in highlighting shared conceptual frameworks and practices in the relations between Europeans and non-Europeans during the early modern period. With regard to the VOC and other early modern trading companies (or ‘company-states’; Stern, 2011), this trend involved a move toward more interdisciplinary and (cross-)cultural perspectives on the history of the companies and their relations with Southeast Asian (and other non-European) actors (Meersberg, 2017; Clulow and Mostert, eds, 2018). In doing so, historians of the VOC set out to understand the process of Dutch colonial expansion from connected and multipolar perspectives, taking into account the worldviews, interests and motivations of Southeast Asian actors. The result was that the VOC often came out less as an omnipotent colonial power but more as an arbitrator and source of justice that assimilated Asian ideas of statecraft and power rather than imposed European ones. For example, several studies have analyzed how the VOC in many places throughout insular Southeast Asia took on the traditional role of a stranger-king, whose authority was often accepted with relative ease by indigenous populations (e.g. Hägerdal, 2012; Henley, 2002; Sahlins, 2008).

Historians from the 1990s onward also took interest in the diplomatic relations between Ayutthaya (Siam or Thailand) and various European nations (e.g. Cruysse, 2002 [1991]; Ruangsilp, 2007). The latter in particular emphasised how the Dutch were forced to adapt to and participate in Thai court rituals and other practices in order to maintain good trading relations with Ayutthaya. Another field of research that has drawn significant attention is the contacts between Ayutthaya and France, particularly the Thai embassies to the court of Louis XIV in the 1680s. In line with the turn toward intercultural perspectives and new diplomatic history, the focus of interest has been mainly on the cultural aspects of the diplomatic encounters and relations, including studies of royal ceremonies (Love, 1996), music (Irving, 2012), and gifts and material culture (Martin, 2015; Riello, 2017).

4 TREATY-MAKING IN SOUTHEAST ASIA: SOME CURRENT THEMES AND DEBATES

A large part of the research on the history of international law and diplomacy in Southeast Asia since the early 2000s has focused on treaties and treaty-making. Again, the influences came from several (and partly overlapping) fields of study that emerged at the end of the 20th century, such as postcolonial studies, global history, new imperial history, new diplomatic history, and TWAIL. It is also possible that the surge in the interest in treaties between colonial powers and Indigenous nations in other regions of the world, particularly North America and New Zealand, from the last decades of the 20th century stimulated scholars of Southeast Asia to take a greater interest in the subject. However, whereas the interest in historical treaties in North America and other settler colonial contexts is linked to contemporary demands for justice and compensation by Indigenous peoples, treaties in Southeast Asia have not yet been mobilised for such purposes to any great extent. The rise in the interest in treaty-making in Southeast Asia is thus more likely to be a result of historiographic developments than be linked to contemporary social and political struggles.

At the moment, three broad themes or directions can be discerned in the research on historical treaties and treaty-making in Southeast Asia: Indigenous perspectives on treaties and treaty-making; the question of to what extent treaties were based mainly on consent or coercion; and linguistic discrepancies and biases in published compilations of treaties.

4.1 Southeast Asian perspectives on treaty-making

Whereas much earlier research, such as the works of Alexandrowicz, Rubin, Resink and Keene, focused on the extent to which Southeast Asian concepts and practices of international relations influenced the development of international law in Europe during the early modern period, more recent studies have taken a greater interest in the significance of treaty-making as a cross-cultural practice in Southeast Asia. The aim is to provide a better understanding of how indigenous Southeast Asian actors perceived their treaty relations with the European colonial powers, particularly the major power in the region during the 17th and 18th centuries, the VOC. In pursuing this aim, the research contributes to more globally inclusive and multivocal histories, both with respect to the region's role in the development of international law and the role of treaties and treaty-making in early modern Southeast Asia. This line of research follows a trend in Southeast Asian historiography, which since the 1980s has seen a shift toward greater interest in indigenous traditions and practices and cultural encounters (e.g. Reid, 1988–1993; Lombard, 1990) as well as the greater interest in cross-cultural diplomacy as discussed above.

An example of this line of research focusing on treaties is an article published in 2005 by G. L. Koster, a scholar of Malay literature, which highlights how treaties with the VOC were described in three Malay manuscripts written between 1670 and 1760. Koster's close reading of the texts shows that the main concern of the authors was ‘damage-control’, in particular with the regard to the fact that the Malay rulers of Johor, Goa and Perak all had made treaties with the Dutch despite their being ‘unbelievers’ (that is, non-Muslims), which posed problems for the legitimacy of the ruler, who was a religious as well as political leader. Another concern of the Malay authors was to explain the sovereigns' defeat in wars against the VOC. To that effect, the Dutch are generally described as meddlesome and greedy mercenaries insensitive to local concerns (Koster, 2005; see also several of the contributions in Locher-Scholten and Rietbergen, 2004, Borschberg, 2014, for further examples of research aiming to highlight Southeast Asian perspectives on treaties and treaty-making during the early modern period).

A recent overview of Southeast Asian principles of statecraft in relation to European treaty-making practices by Peter Borschberg also highlights the mutually constitutive character of treaty-making in early modern Southeast Asia. According to Borschberg, the VOC not only introduced the practice of treaty-making in the region but also inserted themselves into the existing systems of statecraft and hierarchies of rulers, for example, by becoming tributaries to China and by providing protection to and collecting tributes themselves from lesser rulers. At the same time, treaties sometimes had profound consequences for international relations in the region, both through shifting the balance of power between indigenous states and, in some instances, by elevating the status of individual rulers, sometimes even to the point of conferring sovereignty on them (Borschberg, 2021; see also Borschberg, 2011, p. 159; Clulow & Mostert, 2020).

The renewed interest in treaties in Southeast Asian and other non-European contexts has also received criticism. If the aim is to understand diplomatic and imperial relations from indigenous Southeast Asian points of view, focusing on treaties, understood as formal and written agreements, obviously risks overshadowing other forms of agreements that were common in the region in pre-colonial times, such as oral pledges of allegiance, marital alliances, blood compacts and tributary relations. There is thus a danger that the ‘fetishism’ of treaties (Van Ittersum, 2018, p. 173) skew our understanding of history and reinscribe itself in contemporary international relations to the detriment of formerly colonised nations and peoples.

4.2 Violence, coercion and consent

A landmark publication in the study of treaties in imperial contexts is the edited volume Empire by Treaty, published in 2015, which gathered eight empirical contributions dealing with a wide range of different imperial settings, including South and Southeast Asia, North and South America, Africa and Oceania. In her introduction, the editor, Saliha Belmessous, argued that treaties were a means by which Indigenous actors in history were able to further their interests and augment their social status and political influence. Although Belmessous recognised that European colonial powers did not shun the use of violence to produce or enforce treaties as well as ‘fraudulence, unfairness and violation of indigenous entitlements’, she nevertheless held that mutual consent was important to Europeans and non-Europeans alike. She also pointed out that treaties were seen as a more legitimate way of extending territorial claims than conquest and violence (Belmessous, 2015: 1, 6–7, 11, 12).

This generally positive view of treaty-making in imperial contexts has invited criticism. In a largely critical review of the book, Dane Kennedy asked rhetorically if it was even meaningful to talk of consent when treaties, as Arthur Weststeijn demonstrated in his contribution about the VOC in the early 17th century (Weststeijn, 2015), were forged through ‘violence and other forms of intimidation to coerce consent’ (Kennedy, 2015b).

The theme of violence and coercion versus consent in treaty-making was further developed by Martine Van Ittersum. In a contribution to another edited volume, she described the brutal and highly non-consensual character of 17th-century treaty relations between the VOC and the indigenous population of the Banda Islands in present-day eastern Indonesia, as well as between the Dutch West India Company and native Americans in the New Netherlands (present-day New York state and New Jersey). Her chapter was polemically entitled ‘Empire by Treaty?’, and in contrast to Belmessous, Ittersum concluded that treaties were not an alternative to conflict and war but rather an essential part of it. Moreover, Ittersum argued that treaties in the early modern period were never equal and that the ultimate aim of the treaties between Europeans and non-Europeans was the subjection of the latter (Van Ittersum, 2018). These conclusions are in stark opposition not only to Belmessous' emphasis on treaty-making as mutually consensual but also to Alexandrowicz's (and others') notion of relative equality in the treaty relations between European and Southeast Asian polities before the turn of the 19th century.

Although he did not directly investigate the controversy stirred by Empire by Treaty, Adam Clulow offered something of a middle ground by suggesting that treaty relations be seen as an arena for conflict and competition rather than a manifestation of consensual relations. Non-Europeans, Clulow argued, frequently put up counterclaims and ‘legal resistance’ (in addition to armed resistance) to European claims to possession and dominance (Clulow, 2016, pp. 36–38).

The discussion of the role of consent versus coercion or violence in the context of diplomatic relations and treaty-making between European colonial powers and indigenous polities in Southeast Asia is likely to continue. The issue is perhaps not so much theoretical as methodological and empirical. There is an obvious need to be cautious with regard to reports by the colonial treaty negotiators, who often had an interest in portraying their dealings with local rulers and populations as friendly and consensual rather than hostile and violent. On the other hand, there are many examples of Southeast Asian rulers and other actors who for various reasons willingly and even actively sought to establish treaty relations with the VOC (e.g. Henley, 2002; Heeres & Stapel, 1907–55, vol. 5: 165). The role that violence and coercion played in treaty-making thus varied greatly between the thousands of treaties that were concluded between imperial powers and Southeast Asian rulers and states between the 17th and 20th centuries.

4.3 Linguistic discrepancies and biases in publications and research

The 19th and 20th centuries saw the publication of several collections of treaties between colonial powers and non-European states and rulers (e.g. Aitchison, 1862; Biker, 1881–86; Heeres & Stapel, 1907–55; Maxwell & Gibson, 1924). In general, there were two main, sometimes overlapping, purposes of such compilations: to serve as reference works for colonial administrators and to make the treaty texts readily available for historical studies. However, the publication of such collections of treaties always involved a selection, in part based on what was available in the colonial archives and in part on what was deemed to be of interest at the time, whether to colonial officials or historians. Some treaties were not readily available to the editors of the publications, particularly those that were available only in Asian rather than European archives, which meant that they often were not included in the printed publications. On the other hand, some documents that normally would not have been considered as international treaties, such as decrees, deeds of appointment, and commercial contracts, were at times included in the published collections (cf. Myers, 1957). These biases in the selection of treaties were subsequently passed on to the 243-volume Consolidated Treaty Series (Parry, 1969–80), which is the source for the main database of historical treaties used by researchers today, Oxford Historical Treaties.

A further problem with the published and digitised collections of treaties is that they almost always only contain the European version of the treaties, whereas treaties between European and Southeast Asian (and many other non-European) parties generally were bi- or sometimes trilingual. Frequently, the treaty texts in different languages differed substantially. The problem has long been known to researchers and frequently caused misunderstandings and conflicts over the interpretation of the treaties during colonial times (e.g. Saleeby, 1908, p. 209; Andaya, 1978). In some cases, the translation and interpretation of certain words and passages in treaties concluded during the colonial era still give rise to controversy. For example, at the heart of the ongoing dispute between Malaysia and the Philippines over the territory of North Borneo (Sabah) is the question of whether the Malay word pajakan in the 1878 agreement between the Sultan Jamalul Azam of Sulu and a German businessman, Gustav von Overbeck, should be translated as ‘cessation’ or ‘lease’ (Wright, 1966).

Researchers who have compared the different versions of particular treaties have often found significant differences. For example, a recent study by Anna Irene Baka and Qi Fei (Baka & Fei, 2018) highlights how the different interpretations of the 1874 Treaty of Saigon between Vietnam and France gave rise to many misunderstandings and much friction in subsequent diplomatic relations, which contributed to the outbreak of the Sino–French War in 1883. Another example is a study by Annabel Teh Gallop comparing the English and Malay versions of a treaty that Alexander Dalrymple, an English East India Company official, signed with Sultan Bantiland Muizzud-Din of Sulu in January 1761 (Gallop, 2016). Gallop found that there were substantial differences between the English and Malay versions of the treaty, not only with regard to the meaning and connotation of certain words and passages but also with regard to the contents. A prohibition on the sale of opium, arms and ammunition in Sulu appears to have been added to the treaty at the request of the sultan, but it was much longer and more detailed in Malay than in English. Moreover, the clause was left out all together when the English treaty text was subsequently printed and published. A forthcoming study by Ariel Lopez, Eleonora Poggio and Birgit Tremml-Werner promises to shed further light on how the Malay or Tausug version of some of the treaties that Sulu concluded with Spain in the 19th century differed from the Spanish versions (Lopez et al., 2024 forthcoming).

5 CONCLUSIONS

Since around 2000, treaty-making and diplomacy involving colonial powers and Southeast Asian states and rulers have drawn the attention of several historians. The rising interest in the history of treaties and treaty-making in the region is part of a growing interest in the subject also in other parts of the world (e.g. Auslin, 2009; Craven, 2005; Calloway, 2013; Belmessous, ed., 2015, Hébié. 2015; Harris, 2020), but the tendency seems to have been particularly strong in Southeast Asia with several publications focusing on the role of treaties and related diplomatic activities in the region in the early modern and colonial periods.

To date, much of the interest has focused on the prolific treaty-making and other diplomatic activities of the VOC in the 17th and 18th centuries, but recently researchers have begun to turn their attention to other colonial actors as well, such as the English East India Company, France, and Spain. Some have also begun to extend the period of investigation into the 19th and even 20th century. Taking the cue from several ‘new’ fields of study that emerged in the last decades of the 20th century, such as global history, new diplomatic history, and postcolonial studies, a central aim of this research has been to highlight the Southeast Asian concepts and perceptions of statecraft and to understand the development of international law and diplomacy in the region as the result of the numerous encounters between European and other colonisers and indigenous Southeast Asian actors. The historiographical shift has led to a greater focus on historical developments in Southeast Asia, in contrast to earlier research, which tended to put European concepts and practices of international law and diplomacy at the center, with Southeast Asian actors, concepts and practices playing a marginal role. An insight from the recent research is that European models of treaty-making and international relations did not supplant existing models of inter-state relations in Southeast Asia. Rather, they interacted and developed over hundreds of years as Asian and European diplomatic actors interacted and learned from one another.

Compared with earlier studies of the commercial and colonial relations between European and Asian actors, recent research tends to give greater weight to the worldviews, interests and actions of Southeast Asian actors, and as a result, their active contribution to the treaty-making and other diplomatic processes has been highlighted. Asian actors could thus initiate and actively take part in diplomatic contacts and treaty-making processes and in doing so consciously seeking to promote their own interest and secure concessions and benefits from the colonial powers. Although violence and coercion often were central elements of the treaty-making processes, treaties also functioned as an arena where non-Europeans could challenge and resist European advances. There were also instances of what appears to have been genuine consent on the part of the Southeast Asian treaty party and in many cases treaty relations served to augment the wealth, power and status of the latter. Against this background, established theoretical frameworks and concepts such as ‘unequal treaties’ or ‘colonial treaties’ seem too broad and general in order to describe the wide variety of treaty-making and diplomatic processes in the region from the turn of the 17th century up until the end of the colonial period around the middle of the 20th century.

Finally, although most of the thousands of historical treaties that were concluded between colonial powers and Southeast Asian states and rulers seem to be of little relevance today, their legacy casts a long shadow into the present. Treaties formed the basis of the territorial claims of the colonial powers, which were subsequently, taken over by the nation-states that make up the region today. The treaties also regulated the political and economic relations between colonial governments and local rulers and communities. In doing so, the treaty relations created a patchwork of different local arrangements, many of which had a profound impact on economic, social and political developments. In this respect, historical treaties are central for understanding the economic, social and political fabric of Southeast Asia today, as well as the nature of diplomatic and international relations in the region and their influence on the development of international law.

ACKNOWLEDGEMENTS

Research for this article was conducted with the support of the Swedish Research Council (grant no. 2020–03796) and the Linnaeus University Centre for Concurrences in Colonial and Postcolonial Studies. Thanks Hans Hägerdal, Preedee Hongsaton, Ariel Lopez, Maarten Manse, Eleonora Poggio, and Birgit Tremml-Werner for valuable comments and suggestions on earlier drafts of this article.

CONFLICT OF INTEREST STATEMENT

None.

Biography

• Stefan Eklöf Amirell is a professor of global history at Linnaeus University, Sweden, and the director of the Linnaeus University Centre for Concurrences in Colonial and Postcolonial Studies. His research interests include comparative colonial history and cross-cultural diplomacy in Southeast Asia. Amirell is the author of Pirates of Empire: Colonisation and Maritime Violence in Southeast Asia (Cambridge University Press, 2019) and several articles and book chapters on Southeast Asia's modern history. From 2021 to 2027, he leads the research environment Historical Treaties of Southeast Asia, financed by the Swedish Research Council (dnr 2020–03796), which gathers seven researchers based in Europe and Southeast Asia.