2. International law in Qing China since the Opium WarFootnote ⁷

The Qing dynasty was not a Han Chinese dynasty but one ruled by Manchus, a Tungusic people from Manchuria that is now one of the 55 officially recognized minority nationalities in China, whom the Ming dynasty (1368–1644) sought to control and later defend China from. Soon after taking control of China proper in 1644, in order to consolidate its control over Han Chinese, the Qing court imposed its own customs and styles on pain of death. However, it also adopted Chinese power structures and cultural norms – in particular the emperor's position and mandate as Son of Heaven, the omnipotent Confucian principle of filial piety to legitimate and reinforce its rule, and the study of Chinese classics as the only route of entry to bureaucracy. John Fairbank explains that Chinese culture was Sinocentric and would not accommodate ‘barbarian’ ideas or institutions, while the Chinese power structure was synarchic, in which ‘barbarians’ – Manchus during the Qing period and Mongols (now another official minority nationality) during the Yuan dynasty (1279–1368) – could partake.Footnote ⁸ Mongol and Manchu reigns thus ‘did not create a marked break or change in the continuity and unity of Chinese culture and civilization’Footnote ⁹ but proved its longevity.Footnote ¹⁰ According to Li Zhaojie, ‘the Confucian view conceived the world as being, which is by definition different from becoming. Process, change, competition, and progress were therefore all concepts unnatural to Confucianism’.Footnote ¹¹ Resistance to foreign ideas posed the greatest hindrance to Qing China's relations with Western powers and its receptiveness to international law. Like all Chinese dynasties preceding it, the Qing dynasty enjoyed its periods of affluence and decline, with its decline exacerbated by its reluctant yet increasing trade with Western powers that the latter eventually compelled by force.

Nevertheless, claims about imperial China's isolation or self-isolation from other states are untrue,Footnote ¹² as European diplomatic and religious missions had been received by China's imperial court since the sixteenth century.Footnote ¹³ From an economic standpoint, China stood as the centre of the largest trading system in the world through its tribute system;Footnote ¹⁴ Kenneth Pomeranz argues that ‘eighteenth-century China (and perhaps Japan as well) actually came closer to resembling the neoclassical ideal of a market economy than did Western Europe’.Footnote ¹⁵ The real discord between imperial China and Western powers lay in the former's reluctance to purchase Western goods and its insistence on the latter's observance of diplomatic protocols in their interactions with the imperial court that were standard in the Chinese world order.

Seeing international society as an extension of Chinese society that was hierarchical, imperial China adopted the tribute system in its relations with neighbouring states (and Western states), and the frequency of a state's ability to pay tribute to China, as China would permit, represented the degree of the tribute state's assimilation to Chinese culture and reflected the position of the tribute state in the Chinese world order. Western powers abhorred the tribute system for violating their Westphalian conception of world order based on the principles of state sovereignty and sovereign equality of states, and ‘regarded it as a hierarchical regional order and an abnormal case of historical states systems’.Footnote ¹⁶ While acknowledging the tribute system as a regional system, Adam Watson accentuated its ‘hegemonial or imperial’ elements, with China as ‘suzerain’ exercising ‘direct authority over the Heartland; and around this empire extended a periphery of locally autonomous realms that acknowledged the suzerain's overlordship and paid his tribute.’Footnote ¹⁷

Western powers misconstrued the culturally dictated tribute system as a mechanism by which imperial China subjugated other states to perpetual inferiority and submission. As Prasenjit Duara, John Kelly, and Martha Kaplan have noted, nation-states in the nineteenth century were essentially imperialist in character and their being equal, and equally sovereign, political units is a post-Second World War notion.Footnote ¹⁸ International law endured profound conceptual shifts during the nineteenth century in order that colonialism, and notions of the ‘family of nations’ and the ‘standard of civilization’, could be accommodated.Footnote ¹⁹ Randle Edwards argues that substantive equality, reciprocity, and territorial integrity were in fact observed by Qing China in its relations with tribute states, even if such relations still manifested a hierarchy in which China was unquestionably leader and protector.Footnote ²⁰ The tribute system was adopted not only by imperial China vis-à-vis neighbouring states, but also by the latter inter se Footnote ²¹ and, as a marker of their own legitimacy, internally;Footnote ²² tribute states regarded the tribute system as akin to a ‘universal kingship linked to a widely shared sense of participation in a high culture’.Footnote ²³ Imperial China, seeing itself as the civilization that had no competitor, was indifferent to exporting its ideals and values, and ‘allowed surrounding peoples and polities to contest, modify and adapt Chinese ideas to their own ends’.Footnote ²⁴ Importantly, Zhang Yongjin and Barry Buzan point out

Instead of a means by which China subjugated other states to submission, the tribute system served the function of translating its moral authority into ‘normative pacification’ within the Chinese world order.Footnote ²⁶ Tribute visits entailed a major burden on China's finances as the Qing court, having to be always benevolent and generous, had to provide gifts to tribute missions and defray their expenses. Larisa Zabrovskaia calculated that about one-thirteenth of Qing China's annual budget was spent on receiving tribute visits.Footnote ²⁷

Imperial China's interactions with Western powers, as early as the seventeenth century with Russia, and later the Netherlands, were modelled on the tribute system in order that basic Chinese cultural assumptions were not disturbed.Footnote ²⁸ However, no compromise could be achieved between the Qing court and the British. Of the seventeen missions led by Western powers between 1655 and 1793, only the one from Great Britain led by Lord Macartney in 1792 refused to follow the Chinese ritual of kowtow, and his mission inevitably failed its aim.Footnote ²⁹ While opium was the casus belli of China's first military conflict with a Western power, at the fundamental level it was the incongruity between the Chinese world order and Western powers’ Westphalian vision of state sovereignty, and the clash of Chinese and Western empires, that a series of military conflicts ensued.

Immanuel Hsü notes that international law was referred to by Lin Tse-hsu, the Imperial Commissioner in charge of halting the opium trade in Canton, in his letter to Queen Victoria requesting that her subjects cease their trading of a noxious product in Chinese territory.Footnote ³⁰ Although Hsü suggests that ‘the initial effect of international law in China was a strengthening of Lin's determination to take a firm stand against the English’,Footnote ³¹ Lin's letter made no mention of international law and was more a request that Great Britain proscribe its subjects bringing opium into China. Lin's letter was ignored (or perhaps not received), and the war that followed his open burning of opium ended with the Treaty of Nanjing under which China ceded Hong Kong Island to Great Britain in perpetuity and agreed to open five ports for trade. Similar to British conception of the First World War as ‘the war to end all wars’, the Chinese regarded the Treaty of Nanjing as the ‘Treaty of Eternal Peace’.Footnote ³² Subsequently, China concluded the Treaty of the Bogue (1843) with Great Britain, the Treaty of Wanghia (1844) with the United States, and the Treaty of Whampoa (1844) with France that conferred the three states extraterritorial jurisdiction over their nationals accused of crimes committed in China. While later a cause of great resentment among the Chinese, concessions such as extraterritorialityFootnote ³³ were made out of expediency and ‘as an expression of the emperor's traditional benevolence toward all men from afar, regardless of their culture or nationality’.Footnote ³⁴ Western powers justified their incursions into China's state sovereignty on the basis that China at the time did not consider state sovereignty to be an international legal principle.Footnote ³⁵ Excluded from the terms of these treaties was permanent foreign diplomatic representation in the Chinese capital, something Western powers considered a matter of course in the conduct of international relations but which China could not countenance as it would directly challenge the central and superior place of the emperor and the tribute system,Footnote ³⁶ and which was agreed to only after the burning of the Summer Palace by Great Britain and France and China's signing of the Treaty of Tianjing with the two states in 1858.

Although the Qing court resented the treaties and foreign intrusions, it found solace in these treaties as they formalized and restrained Western powers’ demands on China. As Mary Wright has noted,

Yet, Fairbank observes, ‘the early treaties in themselves did not remake the Chinese view of the world. To China they represented the supremacy of Western power, but this did not convey the Western idea of the supremacy of law. When Western diplomats extolled the sanctity of the treaties, their Chinese listeners could see the treaty documents as written compacts, but not the institution of law that underlay them.’Footnote ³⁸ Li Hongzhang, an influential Chinese official and reformer at the time, noted that ‘when China signed treaties with Britain and France before, it was under the threat of force. We were threatened and deceived. Those beyond the pale of the protection of international law often suffer huge losses from these treaties’.Footnote ³⁹ China's signing of these treaties should not be construed as signifying its acceptance of international law, as treaty obligations operated between the parties only and were not to form part of the corpus of general international law, particularly when treaties that China entered into with foreign powers during the nineteenth century were all bilateral.Footnote ⁴⁰

Interest in international law in China increased only when Zongli Yamen, China's first foreign ministry, was established in 1861 and supported a translation of Wheaton's Elements of International Law by W. A. P. Martin, an American missionary, to be presented to the imperial court. In his memorial to the imperial court proposing the establishment of Zongli Yamen, Prince Gong stated thus:

As Gerrit Gong puts it, ‘Wheaton's was not merely a commentary on international law; it was international law in the Chinese mind’.Footnote ⁴² Qing officials regarded Wheaton's Elements of International Law as ‘a diplomatic reference book with which the Ch’ing officials might restrain “wild” foreign consuls and avoid diplomatic mistakes’.Footnote ⁴³ The United States embassy in China was concerned that Martin's work might enable the Chinese to ‘endeavour to apply [international law] to their intercourse with foreign countries’ and appreciate ‘how greatly the principle of extraterritoriality contained in their treaties modifies the usage in force between the Western and Christian powers’.Footnote ⁴⁴ The chargé d’affaires of the French legation in China was incensed: ‘Who is this man who is going to give the Chinese an insight into our European international law? Kill him – choke him off; he will make us endless trouble’.Footnote ⁴⁵ When China through reference to international law successfully defended its territorial waters and demanded compensation after Prussia seized three Danish merchant ships as war prize in violation of China's neutrality, the utility of international law was underscored within the Qing court.Footnote ⁴⁶ Wright observes that the Qing court in the 1860s ‘accepted and succeeded in using the principles and practices of Western diplomacy and succeeded in using them as the main bulwark of Chinese sovereignty’.Footnote ⁴⁷ The capacity of international law to change the behaviour of the Qing court should not be overestimated, however. As Gong observes, ‘[t]he Middle Kingdom's size, inertia, and adherence to its own standard of “civilization” made China slow to implement the European standard’.Footnote ⁴⁸ Instead of conceiving and applying international law to change its normative world-view, the Qing court used it as a practical tool to protect China and Chinese interests from further foreign onslaught until an opportunity presented China to reassert itself.

Such normative rejection of international law was partaken in not only by China, but also by Western powers seeking to deny China a place, let alone an equal place, in international society. Western powers, supported by their legal theorists whose work justified colonialism and Western legal norms and principles, devised the notion that only they constituted the ‘family of nations’ from which China, alongside other ancient kingdoms such as Japan, Siam, and the Ottoman Empire, must be excluded on account of their inferior standards of civilization. The extension of international law (including the principle of state sovereignty), and of an international legal order of which states were primary subjects and actors, beyond Europe into the Americas was possible only after ‘completely recasting all non-Western political entities into the mould of modern European states, which in turn required the irreparable destruction of all traditional forms of polity in existence’.Footnote ⁴⁹ The standard of civilization ‘is not just a historical curiosity, but forms an important thread in the social, legal, and institutional fabric of contemporary international society’.Footnote ⁵⁰ While Western powers and legal theorists conceded the existence of the Chinese state and Chinese civilization, they questioned whether the Chinese state, with its level of civilization, was capable of inclusion in the ‘family of nations’; Lassa Oppenheim asserted that ‘[s]tatehood alone does not include membership of the Family of Nations’.Footnote ⁵¹ Even a recognized state may be denied membership in the ‘family of nations’, should its level of civilization be found by Western powers to be wanting. Oppenheim noted that

Martti Koskenniemi argues that the ambiguity of ‘civilization’ was deliberate and ‘an important aspect of its value’:

Gong asserts that the ‘standard of civilization’, and with it the ‘family of nations’, was fundamentally racist,Footnote ⁵⁴ and ‘European military superiority left non-European societies no choice but to come to grips with the European standard of “civilization”’.Footnote ⁵⁵ There was some dissension over whether an ancient non-European civilization, such as China or Japan,

Worse still, ‘extraterritoriality had been the main form of legal imperialism in both, indexing their intermediate status on the scale of civilizations. When the point of reference for China's racial identity began shifting to Africa, not only was there a growing preference for territorial forms of control such as leases, but the West was also increasingly willing to resort to pure violence’.Footnote ⁵⁷

Western legal theorists stressed the case of Japan, which was forced to enter into unequal treaties with Western powers and adopt Western legal, educational, and military models, and whose admission to the ‘family of nations’ took place only after it attained military victory over Russia in 1905, to show the racial heterogeneity of the ‘family of nations’.Footnote ⁵⁸ According to Oppenheim,

However, the rejection of Japan's demand at the Paris Peace Conference in 1919, that the peace treaty with Germany contain a racial equality clause, demonstrated that modernization under Western terms, a military victory over a Western power, and an alliance with a Western power (Great Britain since 1905) did not suffice.Footnote ⁶⁰ As ‘the existence of a language of a standard still gave the appearance of fair treatment and regular administration to what was simply a conjectural policy’,Footnote ⁶¹ Koskenniemi points out that ‘the non-European community could never really become European, no matter how much it tried, as Turkey had always known and Japan was to find out to its bitter disappointment.’Footnote ⁶² The standard was impossible to meet, given that

As China was considered incapable of appreciating and respecting international law, its capacity to conclude treaties, even unequal ones, with Western powers could not be reconciled other than by further distortion of international law and normative logic. Thus, Hall explained, Western powers

Hall further noted that uncivilized or semi-civilized states were ‘subject to a law of which they [have] never heard, their relations to the protecting state [are] not therefore determined by international law’.Footnote ⁶⁵ Protection that international law might afford, including respect for state sovereignty, would be unavailable to non-members of the ‘family of nations’, as international law applied vis-à-vis a non-member only in relations between the protecting state and other civilized states.

3. International law in republican China, 1912–1949

Imperial Chinese rule finally collapsed in 1912. William Kirby asserts that ‘Chinese history during the era of the first Republic was defined and shaped – and must ultimately be interpreted – according to the nature of its foreign relations’.Footnote ⁶⁶ By the end of the First World War, Sun Yat-sen, regarded as the founding father of modern China, declared that nationalism was only half-complete. Han Chinese must ‘sacrifice the separate nationality, history, and identity that they are so proud of and merge in all sincerity with the Manchus, Mongols, Muslims, and Tibetans in one melting pot to create a new order of Chinese nationalism’,Footnote ⁶⁷ and the importance previously placed on the superiority of Chinese culture must now give way to China's national territory.Footnote ⁶⁸ Kirby maintains that

By refusing to ratify the 1914 Simla Convention with Great Britain and Tibet (as it refused to recognize that Tibet was capable of entering into an international treaty on an equal basis as a state), by emphasizing its suzerainty over Tibet, by insisting that proclamations of the Dalai Lama were always subject to the approval of the Chinese government, and by extending the concept of suzerainty to Xinjiang even though Xinjiang had become ‘a virtual territorial extension of the Soviet Union’Footnote ⁷⁰ and performing a ‘delicate surgical procedure’Footnote ⁷¹ to install its own regime in Xinjiang that John Garver argues ‘saved Xinjiang for the Chinese nation’,Footnote ⁷² China managed to retain Tibet and Xinjiang within the realm of China even though China at the time had no real power or authority within the two territories and was struggling within China proper from endless warlord conflicts, communist guerrilla attacks, and aggression from Japan.Footnote ⁷³

In respect of Manchuria, republican China showed not only its adept diplomacy but also its willingness to fight Russia in 1929 and Japan from 1931 to 1945.Footnote ⁷⁴ It was Manchuria that prompted the United States to introduce a new rule of international law – Stimson Doctrine – under which recognition of a territory that came into being as a state through the threat or use of force would thenceforth be unlawful. Brook Gotberg argues that Manchuria served as the ‘acid test’ of the effectiveness and legitimacy of the League of Nations.Footnote ⁷⁵ As China invoked Article XI of the Covenant of the League of NationsFootnote ⁷⁶ (predecessor to Chapter VII of the United Nations Charter), Japan argued that as China was mired in warlord conflicts, it could not be ascribed the qualities of a state (similar to the present-day notion of a failed state) and thus could not invoke the Covenant.Footnote ⁷⁷ When the League of Nations accepted the Stimson Doctrine as ‘a statement of the course of action to which the parties to the Covenant and the Pact [of Paris of 1928] are legally obliged by their ratification of those instruments’,Footnote ⁷⁸ Japan withdrew from the League of Nations. Thus, while struggling from within and externally, China was able to utilize international law and the international legal order of the day not only to defend its state sovereignty de jure, but also to have substantive influence on the development of international law.

A discussion of republican China's approaches to international law cannot omit the demands that Japan imposed on China during the First World War and the complicity of other states. Japan, which had already been ceded Formosa (Taiwan) after its victory in the First Sino-Japanese War (1894–95), seized control of Shandong when the First World War broke out, on the premise that the province, over which Qing China had given concessions to Germany, was now enemy territory, despite the fact that both China and Japan were allies against Germany and China entered the war on condition that all concessions China had given Germany be returned or abrogated. Japan additionally made ‘Twenty-One Demands’ on China in 1915 that China agree, inter alia, to confirm Japan's acquisition of Shandong, to expand Japan's sphere of influence in southern Manchuria and eastern Inner Mongolia, and not to make any further coastal or island concessions to any other foreign power. The fact that the Treaty of Versailles of confirmed that Germany's rights over Shandong be transferred to Japan, together with Western powers’ ignoral of China's request that all concessions Qing China had given foreign powers, especially extraterritoriality, be abrogated, led China to refuse to sign the treaty and set off the May Fourth Movement in 1919 that Zhidong Hao argues contributed to the Chinese communist movement and its eventual success in 1949.Footnote ⁷⁹

Apart from aggression from foreign powers and power struggles within China, the problem of extraterritoriality had yet to be resolved. Miles Lampson, the United Kingdom's representative to China, considered China to suffer from an ‘extraterritoriality complex’.Footnote ⁸⁰ Nineteen states secured extraterritoriality from Qing China.Footnote ⁸¹ While the focus of the 1921 Nine-Power Washington Conference was on naval disarmament, China's demand that the extraterritoriality that Qing China had conceded be abrogated was the subject of heated debate. The Chinese delegation presented a series of statements of principles, including that ‘[t]he Powers engage to respect and observe the territorial integrity and political and administrative independence of the Chinese Republic’,Footnote ⁸² and that ‘[i]mmediately or as soon as circumstances will permit, existing limitations upon China's political, jurisdictional and administrative freedom of action are to be removed.’Footnote ⁸³ On 10 December 1921, the Nine Powers adopted a resolution establishing a Commission on Extraterritoriality to explore if, how, and when China might progress towards attaining the requisite standard of civilization. The Powers agreed ‘to give every assistance towards the attainment by the Chinese government of its expressed desire to reform its judicial system and to bring it into accord with that of Western nations’, and indicated their willingness ‘to relinquish extraterritorial rights when satisfied that the state of the Chinese laws, the arrangements for their administration, and other considerations warranted them in so doing’.Footnote ⁸⁴ Article I of the 1922 Nine-Power Treaty stated that

When Germany in 1921 and Russia in 1924 had their extraterritorial jurisdiction in China abrogated by agreement, they did not find Chinese laws and courts objectionable, which Harold Scott Quigley described as a ‘remarkable’ development.Footnote ⁸⁶

When China negotiated revision of treaties with foreign powers that it considered to have been concluded by Qing China under duress, it invoked the doctrine of rebus sic standibus, which has since been affirmed as a rule of customary international law and incorporated in the Vienna Convention on the Law of Treaties.Footnote ⁸⁷ On 16 April 1926, China sent a note to Belgium demanding that the treaty of amity, commerce and navigation Qing China concluded with Belgium in 1865 be revised and eventually terminated. In its note, China stated that

No agreement was reached and China issued a declaration unilaterally terminating the treaty on 6 November 1926.Footnote ⁸⁹ In a note of 16 November 1926, China indicated that its termination was in accordance with Article 19 of the Covenant of the League of Nations and the doctrine of rebus sic standibus, and rejected Belgium's proposal that the matter be referred to the Permanent Court of International Justice on grounds that it was ‘political in character and no nation can consent to the basic principle of equality between States being made the subject of a judicial inquiry’.Footnote ⁹⁰ The matter was settled with the conclusion of a new treaty of 22 November 1928 that included a conditional abrogation of Belgium's rights of extraterritoriality, although Belgium rejected China's position that China was entitled to terminate the treaty unilaterally.Footnote ⁹¹ On 7 July 1928, the Chinese Ministry of Foreign Affairs declared that

As its negotiations with most Western states for revision of treaties stalled, China on 17 May 1931 declared that ‘all unequal treaties previously imposed upon China by various countries would not be recognized by the Chinese nationals’.Footnote ⁹³

Eventually, due to the outbreak of the Second World War, notwithstanding Western concern about the ‘absence of written laws, the different conceptions of jurisprudence between the Western world and the East (e.g., the doctrine of responsibility)’ and ‘the apparent lack of independence of the Chinese judiciary’,Footnote ⁹⁴ China on 9 December 1941 unilaterally abrogated extraterritoriality in China vis-à-vis Germany, Italy, and Japan. China concluded treaties with major allies and neutral countries between 1943 and 1947, under which the latter relinquished their special rights and privileges in China. Praise for the normative roles and utility of international law should not be sung too quickly, however, as it was the diminution of European powers and the rise of the United States and its opposition to colonial rule, as well as the need for a military alliance with China and use of its military bases during the war, that enabled China to secure revision or termination of treaties that conferred foreign powers extraterritorial jurisdiction.Footnote ⁹⁵ As William Callahan has commented,

4. International law in communist China, 1949–1971

The communist forces prevailed in the Chinese civil war (1947–49) and the PRC government became the effective government of China on 1 October 1949, while Nationalist leaders and followers fled en masse to Taiwan. The communist regime, ‘a grave threat to the international society’,Footnote ⁹⁷ was not recognized by the United Nations as the representative government of China until 25 October 1971. Indeed, as the Cultural Revolution (1966–76) was raging in China, Coral Bell regarded China as ‘the most determined and implacable revolutionary enemy of the existing international order’.Footnote ⁹⁸

A brief clarification as to foreign recognition of states and governments is in order here, as it helps explain not only the rejection of the PRC government as the representative government of China by the United Nations and other states and communist China's approaches to international law and international organizations, but also the continual impasse over the legal status of Taiwan.Footnote ⁹⁹

The 1933 Montevideo Convention on the Rights and Duties of StatesFootnote ¹⁰⁰ sets out what is considered a rule of customary international law that ‘[t]he State as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other States.’Footnote ¹⁰¹ However, government does not necessarily denote sovereignty and many territories that lack sovereignty, such as Hong Kong, satisfy the four criteria. The criterion vis-à-vis a capacity to enter into relations with other states is also undefined, and such capacity is not confined to states alone. The criterion is also circular insofar as in relating a territorial entity to other states it presupposes the entity being a state already existent.

The PRC government began to be recognized by the majority of foreign states in the 1970s. However, China as a state under international law has always subsisted. As John Moore in his formulation of a general principle of international law stated,

Foreign recognition constitutes evidence, but is not a precondition, of a territory's statehood; otherwise, statehood would be rendered a matter of Realpolitik and be rid of its legal objectivity. While it might be argued that foreign recognition of Kosovo as a state in February 2008 independent of Serbia might have set a precedent for foreign recognition to be a controlling factor in determining statehood, a fait accompli imposed by powerful states does not equate legality or legal validity. Russia's retaliatory recognition of Abkhazia and South Ossetia in August 2008 as states independent of Georgia should serve as a stern warning of the importance of legality and the dire consequences of ignoring legal rules and principles that apply to statehood. As Article 3 of the Montevideo Convention states, ‘[t]he political existence of the State is independent of recognition by the other States’.Footnote ¹⁰³

Quincy Wright has stated that ‘international law forbids premature recognition of an insurgent or revolutionary government and, apart from the Stimson doctrine, forbids continued non-recognition of a firmly established government.’Footnote ¹⁰⁴ The authorities on Taiwan once sought to invoke the Stimson Doctrine against other states’ recognition of China as represented by the PRC government as a state, on grounds that the communist forces’ success in the Chinese civil war had been brought about by the military intervention of the Soviet Union. The United Nations General Assembly refused to accept the argument and passed a resolution calling for respect for the independence of China in accordance with the United Nations Charter and general principles of international law. The consensus of the General Assembly was that ‘[t]he acquisition of control by the [Chinese] Communist government was in its opinion a manifestation of the self-determination of the Chinese people rather than a manifestation of aggression by the Soviet Union.’Footnote ¹⁰⁵ As Nicholas Tsagourias argues,

Early communist Chinese foreign policy focused on endorsing and supporting any national independence movement. Liu Shaoqi, a leading Chinese Communist Party figure, stated in a national broadcast in 1948 that

Arthur Steiner has identified six major premises of early communist Chinese foreign policy stemming from its basic doctrine of anti-imperialism:

That China was reduced by imperialism during the ‘century of humiliation’ since the Opium War to a semi-colonial entityFootnote ¹⁰⁹ was – and remains – ‘a cardinal principle of the Chinese Communist faith’Footnote ¹¹⁰ and widely shared among the Chinese people. The PRC government focused on the social dynamics and consequences of imperialism, and decried international law for abetting imperialism. Steiner notes that, as early as February 1947, the Central Committee of the Chinese Communist Party issued a declaration indicating that certain foreign loans and agreements concluded by the Nationalist government were ‘completely contrary to the will of the Chinese people and. . . have plunged and will continue to plunge China into civil war, reaction, national disgrace, loss of national rights, colonialism and to ultimate crisis in chaos and collapse’.Footnote ¹¹¹ The Committee declared that the Communist Party

On 29 September 1949, the Chinese Communist Party indicated in Article 55 of the Political Consultative Conference Common Programme that ‘[t]he Central People's Government of the People's Republic of China must study the treaties and agreements concluded by the Kuomintang government with foreign governments and, depending on their contents, recognize, annul, revise or re-conclude them’.Footnote ¹¹³ The PRC government relied on the doctrine of rebus sic standibus to argue that all treaties concluded by imperial or republican China were now void since communist China possessed a radically different class character.Footnote ¹¹⁴ Significantly, at a Security Council meeting on 28 November 1950, the PRC government's special representative indicated that ‘without the participation of the lawful delegates of the People's Republic of China, the people of China have no reason to recognize any resolutions and decisions of the United Nations.’Footnote ¹¹⁵ The PRC government's position should demonstrate the fallacy of the notion that non-democratic states should be not recognized or de-recognized, or excluded from membership or participation in international organizations.

The concept of unequal treaties was not adopted in the Vienna Convention on the Law of Treaties. Humphrey Waldock, as special rapporteur, stated before the United Nations International Law Commission in 1963 that

The principle of the intertemporal law entails that a treaty comprising terms that were lawful and valid at the time when it was concluded must continue to be treated as lawfully concluded, valid and binding notwithstanding subsequent developments in international law. Otherwise, all treaties would be at risk of being unilaterally treated as nullities that would lead to widespread international conflicts. The principle of the intertemporal law is not absolute, however, as any treaty that conflicts with a peremptory norm of international law, even if the norm matured after the treaty was concluded, becomes void and terminates.Footnote ¹¹⁷ Thus, instead of arguing that certain treaties that imperial or republican China entered into with foreign powers were ‘unequal treaties’, China might be better placed to rely on the peremptory norm of international law – the prohibition of the use of force in the conduct of international relations – to argue that such treaties should be considered void. Nonetheless, China was not in a position to argue that a fundamental change of circumstances (regarding the fundamental change of its regime, governance or society) would enable it to amend, repudiate, terminate, or withdraw from any treaty which established a boundary,Footnote ¹¹⁸ although the fact that it was able to terminate the 1842 Treaty of Nanjing and the 1860 Treaty of Beijing under which China ceded to Great Britain in perpetuity Hong Kong Island, Kowloon Peninsula, and Stonecutters Island meant that China eventually was able to shape to its advantage, through diplomacy or disguised or actual threat of force, the interpretation of a customary norm embodied in a widely ratified treaty often taken as codification of the law of treaties.

The PRC government did not wholly reject international law as an imperialistic or Western tool to contain or exploit China. In line with Soviet teaching that ‘international law, in addition to being a body of principles and norms which must be observed by every country, is also, just as any law, a political instrument; whether a country is socialist or capitalist, it will to a certain degree utilize international law in implementing its foreign policy’,Footnote ¹¹⁹ international law for communist China was a means to attain socialist revolution as well as modernization for the state, and Chinese scholarly writing at the time reflected such a view. For example, Chu Li-lu argued that

When discussing the relationship between China and international law, reference must be had to the Five Principles of Peaceful Co-existence that China set out in a bilateral treaty with India in 1954, particularly as the Principles remain a cornerstone of contemporary China's approach to international law and Chinese foreign policy. In the 1954 treaty, China and India stated that the Principles should guide their bilateral relations. These Principles are, namely, ‘mutual respect for territorial integrity and sovereignty’, ‘mutual non-aggression’, ‘mutual non-interference’, ‘equality and mutual benefit’, and ‘peaceful co-existence’. The Principles were subsequently expanded by the 1955 Bandung Conference to ten guiding principles, namely, ‘respect for fundamental human rights and for the purposes and principles of the Charter of the United Nations’, ‘respect for the sovereignty and territorial integrity of all nations’, ‘recognition of the equality of all races and of the equality of all nations large and small’, ‘abstention from intervention or interference in the internal affairs of another country’, ‘respect for the right of each nation to defend itself singly or collectively, in conformity with the Charter of the United Nations’, ‘abstention from the use of arrangements of collective defence to serve any particular interests of the big powers’, ‘abstention by any country from exerting pressures on other countries’, ‘refraining from acts or threats of aggression or the use of force against the territorial integrity or political independence of any country’, ‘settlement of all international disputes by peaceful means, such as negotiation, conciliation, arbitration or judicial settlement as well as other peaceful means of the parties’ own choice, in conformity with the Charter of the United Nations’, ‘promotion of mutual interests and cooperation’, and ‘respect for justice and international obligations’. It is noteworthy that China referred to the Five Principles when it called on the Soviet Union to cease suppression of the Hungarian revolt in 1956 before the Sino-Soviet split in the early 1960s, thereby affirming that for China these Principles were of normative universal applicability.Footnote ¹²¹

Albeit a creation in a bilateral treaty between China and India, the Five Principles did not reflect a novel or peculiarly Chinese (or Indian) perspective of international law or of international legal order. James Chieh Hsiung has characterized the Principles ‘as having received their legal basis from pre-existing fundamental principles (e.g., sovereignty, non-intervention, etc.), to which the United Nations Charter has only given new expression, and as forming a body of peremptory norms necessary for the international ordre public’.Footnote ¹²² Russell Fifield argued in 1958 that the inclusion of the Principles in a General Assembly declaration in October 1957 without objection constituted ‘a significant step in the evolution of the Five Principles since their formal inception in 1954’.Footnote ¹²³ Wang holds the view that the Principles constitute fundamental principles not ‘of a special branch of international law, but of the whole system of international law’,Footnote ¹²⁴ and adds that the PRC government and Chinese scholars do not regard the Principles as the only fundamental principles of international legal order, but ‘the core, or at least the main part, of the fundamental principles of international law’.Footnote ¹²⁵

5. International law in communist China, 1971–1984

25 October 1971 marked the turning point in the relationship between China and international legal order, when the PRC government, by a majority vote of the General Assembly, replaced the authorities on Taiwan as the representative government of China in the United Nations. The PRC government soon also replaced the authorities on Taiwan in other international organizations, and recognition by other states of the PRC government as the sole legitimate government of China quickly followed. However, the PRC government continued to hold hostility towards the United Nations.Footnote ¹²⁶ Hedley Bull argued in the early 1970s that ‘China disavows entirely the role of a great power, and views itself as the champion of the Third World nations in their struggle against “super power hegemonism”’,Footnote ¹²⁷ until it warmed during the 1980s to the roles it may play through the United Nations in shaping the conduct of international relations, including the development of international law. In a communication to the Secretary-General of the United Nations in 1977, China stated that

Given the emphasis in international legal literature on compliance, as China is a leading power in East Asia and beyond, but which possesses a legal system that has only recently been regarded by its own state apparatuses and populace as a tool, forum, and refuge through which rights may be vindicated and wrongs redressed, a discussion as to China's position on sources of international law is useful as it illustrates China's approaches to international law, international organizations, and international adjudication, as well as the relationship between international law and municipal law in the Chinese legal system.

In line with Soviet thinking, China emphasized that only treaties and customs could be considered sources of international law. According to the Soviet view, treaties formed the cornerstone of international law. Customs enjoyed only a subsidiary role, contrary to the Western position that a norm of customary international law became binding on a state even if the state refused to ratify a treaty that contained the same norm.Footnote ¹²⁹ In his Hague Academy Lectures in 1958, Grigory Tunkin stated that for a custom to become a binding legal norm, it must have been accepted by all states. While Tunkin accepted that customs had played a large role in the formation of international law during the nineteenth century, he argued that their importance since then had subsided,Footnote ¹³⁰ and that

The Soviet perspective placed emphasis on strict observance of treaties, embodied in the principle pacta sunt servanda, in legal relations among states, although ‘Soviet jurists would retain for themselves, so to speak, a unilateral right of repudiation or denunciation of those treaties that they themselves do not particularly like’.Footnote ¹³² Meanwhile, China maintained that only resolutions adopted by the General Assembly that were of a normative character relating to the rights and obligations of states, interpretations of the United Nations Charter or fundamental principles of international law, or declaratory of existing international law, might be capable of constituting a subsidiary source of international law.Footnote ¹³³

Unlike their Soviet counterparts, scholars in China rejected general principles of law and awards or decisions of international tribunals as sources of international law, unless these principles and awards or decisions had been or have since been recognized in treaties or as customs.Footnote ¹³⁴ Zhu Lisun has written that ‘[f]irst, in reality there are only two legal systems, i.e., municipal law and international law, and there exists neither an abstract law nor a legal system above the municipal law and international law. Therefore, there will be no general principles of law in abstract. Second, the general principles of law advocated by Western legal scholars are municipal law principles. However, since international law and municipal law are two different legal systems, the principles of municipal law cannot be applied to international law.’Footnote ¹³⁵ The standard textbook on international law in China at the time argued that the important point about whether general principles of law constituted a source of international law

Article 38 of the Statute of the International Court of Justice itself is not a source of international law; it is a provision that enumerates sources to which the Court may refer in its decisions and advisory opinions. Constituting one facet of the Court's specific procedures, the provision cannot be taken to represent a codification, or general recognition among states, of what constitutes international law. Article 59 of the Statute, which states that a decision of the Court has binding force only inter partes and in respect of the particular case, shows that the legal significance of a decision of the Court does not go beyond the scope of the decision and metamorphose into the general corpus of international law.Footnote ¹³⁷ In respect of teachings of jurists which Article 38(3)(d) of the Statute recognizes as a subsidiary source of international law, scholars in China held the view that Western jurists’ interpretations of international law merely reflected the bourgeois and imperialistic nature of international law and should be rejected, and only jurists trained in ‘the proletarian science of international law can correctly apply or interpret rules of international law’.Footnote ¹³⁸

Samuel Kim suggested in 1978 that China's frequent non-participation and abstentions as a Permanent Member within the Security Council in the 1970s were indicative of its lack of a ‘principled stand’ on many legal issues.Footnote ¹³⁹ However, Kim later argued that through non-participation in Security Council decision-making processes during the 1970s, China managed to maintain ‘both passive opposition based on China's “principled stand” and passive cooperation based on China's refusal to obstruct the majority (Third World) will’.Footnote ¹⁴⁰ Calling China a ‘Club of One’ within the United Nations, Ann Kent argues that instead of posing as a leader of developing states, China sought to balance its own fundamental interests and at the same time advocate those of developing states.Footnote ¹⁴¹ Even after China started to participate more actively in international organizations in the aftermath of the Cultural Revolution and following the onset of political reform that Deng Xiaoping initiated in 1982, many remained unconvinced by its motives. Bell, for instance, was adamant that ‘[p]resent Chinese concepts of the world order as-it-should-be presumably continue to embody the vague Marxist notion of the eventual withering-away of the state, a development which (if it ever occurs) will obviously make the notion of a society of states obsolete’.Footnote ¹⁴²

Other scholars were concerned about the apparent incompatibility between China and international legal order in which human rights began to assume a primary place, as the Chinese conception of rights emphasizes collective rather than individual rights.Footnote ¹⁴³ Kim argues that China allowed its insistence on state sovereignty to take a back seat due to its increasing dependence on the international system between the end of the Cultural Revolution and the international uproar following its suppression of dissent on Tiananmen Square in June 1989. He finds that

Meanwhile, China avoided, and continues to avoid, international mechanisms of a judicial character, as it considers that interstate disputes should be resolved by negotiations and not by legal proceedings. In a letter to the International Court of Justice of 5 September 1972, China as represented by the PRC government stated that it ‘does not recognize the statement made by the defunct Chinese Government on 26 October 1946. . . concerning the acceptance of the compulsory jurisdiction of the Court’.Footnote ¹⁴⁵ Similarly, in its participation in the negotiations for the eventual 1982 United Nations Convention on the Law of the Sea, China opposed vesting compulsory jurisdiction in the International Tribunal for the Law of the Sea as contrary to the principle of state sovereignty.Footnote ¹⁴⁶ Even though as a Permanent Member of the Security Council its candidate would have been automatically elected, China did not nominate any candidate to the bench of the International Court of Justice between 1971 and 1984, largely due to its inexperience with international law and, during the Cultural Revolution, hostility to any notion of law, and its rejection of any international tribunal as an appropriate forum to settle disputes between states. It was not until 1984 that China nominated Ni Zhengyu to the bench.

As time went on, the PRC government began to accept China's capacity to play major substantive roles in resolving international disputes, particularly after the Nicaragua decisionFootnote ¹⁴⁷ in which the Court sided with a developing state and not the United States. China's Ambassador Huang Jiahua stated in 1987 that

China is not alone in its hostility to international dispute settlement by judicial means. The United States has painstakingly refused to submit to, or otherwise withdrawn from, compulsory jurisdiction of international tribunals, including the International Court of Justice and the International Criminal Court, precisely in the name of state sovereignty and in its confidence in the quality of its municipal laws and legal system and their conformity with international law. In fact, among the five Permanent Members of the Security Council, only the United Kingdom accepts the compulsory jurisdiction of the International Court of Justice. Kim argued in 1999 that all the changes in Chinese foreign policy since China began to undergo domestic reform and participate more actively in international organizations should be ‘better seen as adaptive/instrumental learning rather than cognitive/normative learning at the basic level of worldview and national identity’.Footnote ¹⁴⁹ However, Kim believed that in continuing to deepen its participation in international organizations, China's choices would be constrained and many of its foreign policy policies, practices, and principles would require readjustment.Footnote ¹⁵⁰

As law was regarded during the Cultural Revolution as a tool of exploitation of the masses, a large number of judges, cadres, and legal scholars were purged without recourse to formal process, and legal education in China was entirely abolished until order was restored. In China until the reform era during the 1980s, law was not to protect rights and freedoms between individuals or against the state, but served as

Even the PRC government's representation of China in the United Nations since October 1971 did not rejuvenate international law as a field of study or an element of policy-making.Footnote ¹⁵² However, since 1974, as the Cultural Revolution was coming to an end, legal education, including instructions and research on international law, was reintroduced at Chinese universities, many of which focused on different aspects of public and private international law.Footnote ¹⁵³ Since then, universities offering degrees and courses, and students trained, in international law have proliferated. The Chinese Society of International Law was established in 1980 and the Chinese Yearbook of International Law began to be published in 1982, which has since been complemented with the publication of the Chinese Journal of International Law by Oxford University Press.

6. International law in socialist-market China since 1984

From communist China's perspective, the applicability of international law in the municipal sphere was a matter for the state, and conflict between international law and municipal law simply could not arise. Various Chinese scholars, following the footsteps of their Soviet counterparts, explained how international law and municipal law were always reconcilable. Soviet scholar Feodor Kozhevnikov explained in 1957 that

Zhou Gengsheng stated that

While Zhou rejected the monist theory of international law as an imperialist notion, Wang and Wei in their textbook regarded it as an attempt to undermine the principle of state sovereignty by using ‘“world law” to substitute international law’ and ‘“world government” to substitute sovereign states, which is theoretically illogical and also contrary to the reality’.Footnote ¹⁵⁶ They explained that

As Liu put it,

Notwithstanding these views espoused by Chinese scholars, and although China's 1982 Constitution is silent on the status of international law vis-à-vis municipal law, Articles 18, 32, and 50 guarantee that in certain areas international law takes precedence over municipal law.Footnote ¹⁵⁹ In addition, Article 238 of the Law of Civil Procedure,Footnote ¹⁶⁰ Article 142 of the General Principles of the Civil Law,Footnote ¹⁶¹ Article 16 of the Income Tax Law concerning Joint Ventures Using Chinese and Foreign Investment,Footnote ¹⁶² Article 28 of the Income Tax Law for Enterprises with Foreign Investment and Foreign Enterprises,Footnote ¹⁶³ Article 6 of the Law on Foreign-related Economic Contracts,Footnote ¹⁶⁴ and Article 36 of the Law of SuccessionFootnote ¹⁶⁵ provide that China's treaty obligations override any inconsistent municipal laws or regulations save those on which China has declared reservations. Taken together, these municipal laws ‘should be regarded as a valid and accountable expression of China's general position as to the issue of validity of treaties in general. . . within the Chinese legal system’.Footnote ¹⁶⁶

A treaty, to be binding on and enforceable in China, must have been entered into by China in accordance with the Law on the Procedures of the Conclusion of Treaties promulgated in 1990; such a treaty, except for provisions on which China has made reservations, is binding on municipal courts and takes precedence over municipal law.Footnote ¹⁶⁷ In China, a treaty does not automatically become part of national law and must go through the process of implementation through administrative measures or transformation through national legislation, although a particular treaty may be directly applied by municipal courts in pursuance of particular enabling national legislation or Article 142 of the General Principles of the Civil Law and Article 238 of the Law of Civil Procedure.Footnote ¹⁶⁸ Xue Hanqin and Jin Qian have noted that China is now party to over three hundred multilateral treaties and about seventy municipal laws touch upon its treaty obligations.Footnote ¹⁶⁹ As it was about to join the World Trade Organization (‘WTO’) in 2001, China stated in the Report of the Working Party on the Accession of China as part of its agreement with the WTO thus:

Xue and Jin note that ‘China has repealed, abrogated, revised, enacted and promulgated more than 3000 domestic laws, administrative regulations and administrative orders to ensure compliance with WTO rules.’Footnote ¹⁷¹