ABSTRACT
Imperial brigands were rarely so bold as to declare the lands they occupied 'terra nullius', denying the evidence of their own eyes as to the palpable fact of prior settlement. Treaties have traditionally been regarded as occupying a place in international law that is strictly analogous to that of contracts in domestic law. Treaties with indigenous peoples are also often plagued by worries about whether those signing them actually had standing or authority among their own people to make the agreement. European incursions on indigenous people's lands were often defended precisely on grounds that the indigenous peoples had, through their legitimate representatives, duly consented to those incursions. Treaty-making in public international law, like contracting in private law, is supposed to be driven by the logic of 'gains from trade'. Differences in preferences are what make this possible: each side prefers what it gets to what it gives up in the trade.
