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China's Approaches to International Law since the Opium War

Published online by Cambridge University Press:  06 November 2014

PHIL C. W. CHAN
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Abstract

International law is an amalgam of the past, present, and future. The past is important in itself not only because the vast majority of rules and principles of international law have come into being through decades, if not centuries, of deviation, crystallization and consolidation, but also because the past, and one's perspectives of the past, underlie, inform and explain a state's perspectives of a particular order or particular norms or values, and its approaches to the perspectives and actions of other states. The importance of understanding China's historical approaches to international law cannot be understated. China's interactions with international law began to take place in the context of its interactions with Western powers that culminated in the Opium War. This article then examines China's approaches to international law during its republican, communist, and contemporary socialist-market eras.

Keywords

approach to international lawChinaimperialisminternational historyOpium War
Type
INTERNATIONAL LAW AND PRACTICE
Information
Leiden Journal of International Law , Volume 27 , Issue 4 , December 2014 , pp. 859 - 892
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2014 

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13 See, e.g., J. E. Wills, Jr., Embassies and Illusions: Dutch and Portuguese Envoys to K’ang-Hsi (1984).

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24 Kang, supra note 22, 25. Moreover, Y. Zhang and B. Buzan maintain, ‘[w]ithout social recognition or rejection, social acceptance or contestation, the ideas and practices of the Chinese world order and Chinese cultural assumptions of superiority would have no substantive social existence in East Asian international relations. They would play no significant structuring role in shaping the norms of legitimate and acceptable behaviour for, and social identity of, not just Imperial China, but, equally, other constituent states. Ideas, beliefs, norms and values central to the constitutional nature of Imperial China's own imagining become intersubjective to varying degrees (or not) among Imperial China and others only through a long and tumultuous historical and social process of assertion, imposition, contention, contestation, rejection, acquiescence and acceptance’: ‘The Tributary System as International Society in Theory and Practice’, (2012) 5 Chinese Journal of International Politics 3, 16–17.

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33 China had in fact extended foreign merchants a limited guarantee against private debts of Chinese merchants to compensate for their lack of access to officials in the Chinese capital or to diplomatic protection in China, with the proviso that a Westerner who violated Chinese law against another Westerner should be deported to and punished by his home country, while one who contravened Chinese law against a Chinese person was to be dealt with under Chinese law: Chen, supra note 7, 90–2.

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36 As Hsü has stated, ‘[t]he international relations of the Far East were regulated by a product of li, the tributary system. No foreign resident ministers were ever received in the Chinese capital, and no Chinese resident ministers were ever sent abroad. To demand a resident minister at the capital was to disrupt the tributary system externally and to pre-empt the concept of li internally, thereby shaking the very foundations of Chinese society. The question involved was not ritual formality, as it might appear on the surface, but the basic fabric of Chinese society and government. Therefore, the demand had to be resisted to the bitter end’: supra note 30, 112.

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89 Ibid., 347.

90 As quoted ibid., 348.

91 Ibid. See Denunciation of Treaty of November 2nd, 1865, between China and Belgium (Belgium v. China), PCIJ Ser. A, No. 8, (1927) 6.

92 As quoted ibid., 261.

93 As quoted ibid.

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101 Ibid., Art. 1 (emphasis added).

102 J. B. Moore, Digest of International Law, Vol. 1 (1906), 249.

103 Montevideo Convention on the Rights and Duties of States, Art. 3.

104 Wright, supra note 37, 324.

105 Ibid., 327–8; the quoted passage appears at 328.

106 Tsagourias, N., ‘International Community, Recognition of States and Political Cloning’, in Tierney, S. and Warbrick, C. (eds.), Towards an International Legal Community?: The Sovereignty of States and the Sovereignty of International Law (2006), 211, 227Google Scholar, citing, inter alia, Jennings, R. Y., ‘Nullity and Effectiveness in International Law’, in Bowett, D. W. (ed.), Cambridge Essays in International Law: Essays in Honour of Lord McNair (1965), 64, 74Google Scholar: ‘Ex factis jus oritur is an expression of truth that no law can ignore save at its peril’.

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111 As quoted ibid., 93.

112 As quoted ibid.

113 As quoted in Wang, supra note 7, 348.

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116 (1963) Yearbook of the International Law Commission Vol. II, 52.

117 Vienna Convention on the Law of Treaties, Art. 64.

118 Ibid., Art. 62(2)(a).

119 F. Chou, (1958) No. 3 Chiao Hsiieh Yii Yen Chin [Teaching and Research] 52, as quoted in Chiu, H., ‘Communist China's Attitude toward International Law’, (1966) 60 AJIL 245, 248CrossRefGoogle Scholar.

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121 In his meeting with the Prime Minister of India on 21 December 1988, Deng Xiaoping stated that ‘[t]he general world situation is changing, and every country is thinking about appropriate new policies to establish a new international order. Hegemonism, bloc politics and treaty organizations no longer work. Then what principle should we apply to guide the new international relations?. . . Two things have to be done at the same time. One is to establish a new international political order; the other is to establish a new international economic order.. . . As for a new international political order, I think the Five Principles of Peaceful Co-Existence, initiated by China and India, can withstand all tests.. . . We should take them as norms for international relations. If we want to recommend these principles as a guide to the international community, first of all, we should follow them in our relations with each other and with our other neighbours’: as quoted in Cheng, J. Y. S. and Zhang, W., ‘Patterns and Dynamics of China's International Strategic Behaviour’, (2005) 11:31Journal of Contemporary China 235, 243CrossRefGoogle Scholar.

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127 H. Bull, The Anarchical Society: A Study of Order in World Politics (1977), 286.

128 Multilateral Treaties in Respect of which the Secretary-General Performs Depositary Functions: List of Signatures, Ratifications, Accession, etc., as at 31 December 1976, St/Leg/Ser. D/10 (1977), iii–iv.

129 McWhinney, E., ‘“Peaceful Coexistence” and Soviet–Western International Law’, (1962) 56 AJIL 951, 955CrossRefGoogle Scholar.

130 G. I. Tunkin, ‘Co-existence and International Law’, (1958–III) 95 Recueil des Cours 1, 23.

131 Ibid., 20.

132 McWhinney, supra note 129, 956–7.

133 Wang, T. and Wei, M. (eds.), Guoji Fa [International Law] (1981), 35Google Scholar, stated that ‘[t]here are divergent opinions on the effect of the resolutions of the United Nations General Assembly. According to the provisions of the Charter of the United Nations, the function of the United Nations General Assembly is generally one of deliberation and recommendation. Except for resolutions relating to organizational and financial questions [which are legally binding], the resolutions of the General Assembly are in the nature of recommendations and do not possess legally binding force. However, one cannot infer from this fact that there would be no legal consequence of resolutions adopted by the General Assembly. Some resolutions of the General Assembly were adopted by unanimous or overwhelming majority votes of member states. Therefore, these resolutions not only have a certain binding force on those members who voted for their adoption, but also have general significance in international relations. In the meantime, some declarations included in certain resolutions may in whole or in part reflect existing or formative principles, rules, regulations or institutions of international law. Thus, these declarations undoubtedly become subsidiary means to determine principles, rules, regulations and institutions of international law. Consequently, one should consider resolutions of international organizations, especially certain kinds of resolutions of the United Nations, as parallel to judicial decisions and writings of publicists. [They have] become “subsidiary means for the determination of rules of law”, though [these resolutions] are not direct sources of international law. Moreover, in view of their international character, their [priority as subsidiary means] should be higher than that of judicial decisions and writings of publicists’: as quoted in Chiu, supra note 118, 1142–3. Similarly, Liu Ding asserted that ‘[a]ccording to international law, an international organization does not have legislative power and the resolutions it passes generally do not have binding force upon its members.. . . However, resolutions of international organizations of significant importance, which are consistent with generally recognized guiding principles of international law, do possess legal validity and should be considered as a source of international law. The Declaration on the Establishment of a New International Economic Order and its Programme of Action adopted by the Sixth Special Session of the General Assembly of the United Nations on May 1, 1974, and the Charter of Economic Rights and Duties adopted by the Twenty-Ninth Session of the General Assembly of the United Nations on December 12, 1974, which confirm the permanent sovereignty over natural resources of states, sovereign equality of all states, the undeniable rights of all states to participate equally in resolving world economic problems and other principles, should have the validity of international law’: Guoji Jingji Fa [International Economic Law] (1984), 14–15, as quoted in Chiu, H., ‘Chinese Views on the Sources of International Law’, (1987) 28 Harvard International Law Journal 289, 304Google Scholar.

134 Chiu, supra note 118, 1140–1.

135 L. Zhu, Guoji Gong Fa [Public International Law] (1985), 10, as quoted in Chiu, ibid., 1141, fn. 47.

136 Wang and Wei, supra note 132, 32, as quoted in Chiu, ibid., 1141–2.

137 Not all scholars in China reject the possibility that a decision of the International Court of Justice may have wider legal effects. For example, Zhou Xiaoling maintains that ‘[a]s the principal judicial organ of the United Nations and the only existing universal judicial organ, the judgments and advisory opinions of the International Court of Justice have significant influence on the development of international law. Although Article 59 of the ICJ Statute provides that a judgment of the Court is binding only on the parties and in respect of the particular case,. . . because of the status of the ICJ in the area of international judiciary, the judgments and advisory opinions of the Court have always been considered as the authoritative expression and interpretation of the questions involved in the case. For instance, significant influences have been produced by the judgments of the ICJ in the Nottebohm case and the Barcelona Traction case toward the question of nationality and diplomatic protections, the Anglo-Norwegian Fisheries case and the North Sea Continental Shelf cases toward the width of the territorial sea and the nature of continental shelf and the Advisory Opinion on the Reservation to the Genocide Convention toward the international rules on the question of reservation to multilateral conventions’: ‘The United Nations and International Law-Making’, (1985) 4 International Studies 29, as quoted in Chiu, ibid., 1144–5.

138 Chiu, supra note 117, 261.

139 Kim, S. S., ‘The People's Republic of China and the Charter-Based International Legal Order’, (1978) 72 AJIL 317, 325CrossRefGoogle Scholar. For example, at the height of the Six Days’ War between Israel and Egypt, Jordan and Syria in 1967, the PRC government decried the General Assembly emergency session as ‘an ugly farce’ and a ‘spurious show’: ‘What kind of thing is the U.N.? It is the tool of U.S. imperialism, number one overlord, and the Soviet revisionist ruling clique, number two overlord, to press ahead with neocolonialism and big-nation power politics.. . . The aggressors get protection as usual and the victims of aggression have to put up with it. Such a U.N. can only be a refuge for imperialists, revisionists, and counterrevolutionaries, and a chain binding the oppressed nations hand and foot.. . . In order to safeguard their independence and defeat the aggression by U.S. imperialism and its flunkey, the Arab people must rely on their own struggle. Pinning their hopes on the Soviet revisionists and the U.N. is like asking the tiger for its hide, and that will only bring on more catastrophes’: Renmin Ribao, 8 July 1967, as quoted in B. S. J. Weng, Peking's U.N. Policy: Continuity and Change (1972), 157. Following the Yom Kippur War between Israel and a coalition of Arab countries led by Egypt and Syria in 1973, Huang Hua, China's Ambassador to the United Nations, warned about the ‘infinite evil consequences’ of dispatching United Nations peacekeeping force and stated: ‘What “United Nations emergency peacekeeping force”? To put it bluntly, this is an attempt to occupy Arab territories. Is not South Korea a living example?’: S/PV.1750, 25 October 1973, 6–7.

140 Kim, S. S., ‘Whither Post-Mao Chinese Global Policy’, (1981) 35 International Organization 433, 442CrossRefGoogle Scholar.

141 Kent, A., ‘China's International Socialization: The Role of International Organizations’, (2002) 8 Global Governance 343, 349Google Scholar. See also Chai, T. R., ‘Chinese Policy toward the Third World and the Superpowers in the UN General Assembly 1971–1977: A Voting Analysis’, (1979) 33 International Organization 391CrossRefGoogle Scholar.

142 Bell, supra note 98,, 265.

143 See Chan, P. C. W., ‘Human Rights and Democracy with Chinese Characteristics?’, (2013) 13 Human Rights Law Review 645CrossRefGoogle Scholar.

144 S. S. Kim, ‘Sovereignty in the Chinese Image of World Order’, in Macdonald, supra note 20, 425, 432.

145 Report of the International Court of Justice (August 1972–July 1973), 28 GAOR. Supp. No. 5, 1.

146 Third United Nations Conference on the Law of the Sea Official Records, Vol. V (1976), 24.

147 Military and Paramilitary Activities in and against Nicaragua (Merits) (Nicaragua v. United States of America), Judgment, ICJ Rep. (1986), 14.

148 China's Ambassador Huang Jiahua's speech at New York University School of Law, 11 March 1987.

149 Kim, S. S., ‘China and the United Nations’, in Economy, E. and Oksenberg, M. (eds.), China Joins the World: Progress and Prospects (1999), 42, 80Google Scholar.

150 Ibid., 81.

151 Leng, S.-C., ‘The Role of Law in the People's Republic of China as Reflecting Mao Tse-tung's Influence’, (1977) 68 Journal of Criminal Law and Criminology 356, 366CrossRefGoogle Scholar.

152 Kim, supra note 138, 318.

153 Chiu, supra note 118, 1159–60.

154 Kozhevnikov, F. I. (ed.), International Law: A Textbook for Use in Law School (1957; trans. 1961), 15Google Scholar, as quoted in Chiu, supra note 117, 259–60.

155 G. Zhou, Guoji Fa [International Law] (1981), 20, as quoted in Chiu, supra note 118, 1146. Interestingly, Zhou's analysis of the relationship between international law and municipal law in a municipal legal order (not necessarily a Chinese or socialist one) was identical to the holding of the United States Supreme Court in Medellin v. Texas, 552 US 491 (2008), that even the United Nations Charter is a treaty binding on the United States at the international level only and has no legal effect in the United States legal order without implementing legislation enacted by the United States Congress, unless the Charter constitutes a self-executing treaty which the Court found not to be the case.

156 Wang and Wei, supra note 132, 43–4, as quoted in Chiu, ibid.

157 Wang and Wei, ibid., 44, as quoted in Chiu, ibid., 1146–7.

158 Liu, supra note 118, 9, as quoted in Chiu, ibid., 1147.

159 Art. 18 of the 1982 Constitution states that ‘[t]he People's Republic of China permits foreign enterprises, other foreign economic organizations and individual foreigners to invest in China and to enter into various forms of economic co-operation with Chinese enterprises and other economic organizations in accordance with the law of the People's Republic of China. All foreign enterprises and other foreign economic organizations in China, as well as joint ventures with Chinese and foreign investment located in China, shall abide by the law of the People's Republic of China. Their lawful rights and interests are protected by the law of the People's Republic of China.’ Art. 32, ibid., states that ‘[t]he People's Republic of China protects the lawful rights and interests of foreigners within Chinese territory, and while on Chinese territory foreigners must abide by the law of the People's Republic of China. The People's Republic of China may grant asylum to foreigners who request it for political reasons.’ Art. 50, ibid., states that ‘[t]he People's Republic of China protects the legitimate rights and interests of Chinese nationals residing abroad and protects the lawful rights and interests of returned overseas Chinese and of the family members of Chinese nationals residing abroad.’

160 Adopted by the Fourth Session of the Seventh National People's Congress on 9 April 1991 and promulgated by Order No. 44 of the President of the People's Republic of China. Art. 238 states that ‘[i]f an international treaty concluded or acceded to by the People's Republic of China contains provisions that differ from those of this Law, the provisions of the international treaty shall apply, unless the provisions are the ones on which China has announced reservations’.

161 Adopted at the Fourth Session of the Sixth National People's Congress on 12 April 1986 and promulgated by Order No. 37 of the President of the People's Republic of China on 12 April 1986. Art. 142 states that ‘[t]he application of law in civil relations with foreigners shall be determined by the provisions in this chapter [i.e., Chapter VIII: Application of Law in Civil Relations with Foreigners]. If any international treaty concluded or acceded to by the People's Republic of China contains provisions differing from those in the civil laws of the People's Republic of China, the provisions of the international treaty shall apply, unless the provisions are ones on which the People's Republic of China has announced reservations. International practice may be applied to matters for which neither the law of the People's Republic of China nor any international treaty concluded or acceded to by the People's Republic of China has any provisions’.

162 Adopted at the Third Session of the Fifth National People's Congress and promulgated on 10 September 1980. Art. 16 states that ‘[i]ncome tax paid by a joint venture or its branch in other countries may be credited against the assessed income tax of the head office as foreign tax credit. Where agreements on avoidance of double taxation have been concluded between the Government of the People's Republic of China and the government of another country, income tax credits shall be handled in accordance with the provisions of the related agreements.’

163 Adopted at the Fourth Session of the National People's Congress on 9 April 1991 and promulgated by Order No. 45 of the President of the People's Republic of China on 9 April 1991. Art. 28 states that ‘[w]here the provisions of tax agreements concluded between the government of the People's Republic of China and foreign governments are different from the provisions of this Law, the provisions of the respective agreements shall apply’.

164 Adopted at the Tenth Session of the Standing Committee of the Sixth National People's Congress on 21 March 1985 and promulgated by Order No. 22 of the President of the People's Republic of China on 21 March 1985. Art. 6 states that ‘[w]here an international treaty which is relevant to a contract, and to which the People's Republic of China is a contracting party or a signatory, has provided differently from the law of the People's Republic of China, the provisions of the international treaty shall prevail, with the exception of those clauses on which the People's Republic of China has declared reservation.’

165 Adopted at the Third Session of the Sixth National People's Congress on 10 April 1985 and promulgated by Order No. 24 of the President of the People's Republic of China on 10 April 1985. Art. 36 states that ‘[f]or inheritance by a Chinese citizen of an estate outside the People's Republic of China or of an estate of a foreigner within the People's Republic of China, the law of the place of domicile of the decedent shall apply in the case of movable property; in the case of immovable property, the law of the place where the property is located shall apply. For inheritance by a foreigner of an estate within the People's Republic of China or of an estate of a Chinese citizen outside the People's Republic of China, the law of the place of domicile of the decedent shall apply in the case of movable property; in the case of immovable property, the law of the place where the property is located shall apply. Where treaties or agreements exist between the People's Republic of China and foreign countries, matters of inheritance shall be handled in accordance with such treaties or agreements.’

166 Li, Z., ‘The Role of Domestic Courts in the Adjudication of International Human Rights: A Survey of the Practice and Problems in China’, in Conforti, B. and Francioni, F. (eds.), Enforcing International Human Rights in Domestic Courts (1997), 329, 341Google Scholar, referring to Legal Status of Eastern Greenland (Denmark v. Norway), Judgment, PCIJ. Ser. A/B, No.53 (1933), 22.

167 Xue, H. and Jin, Q., ‘International Treaties in the Chinese Domestic Legal System’, (2009) 8 Chinese Journal of International Law 299, 300CrossRefGoogle Scholar.

168 Ibid., 306–13.

169 Ibid., 303.

170 Report of the Working Party on the Accession of China, WT/ACC/CHN/49, 1 October 2001.

171 Xue and Jin, supra note 166, 308.

172 For a discussion of how Siam and the Ottoman Empire adapted or reacted to international law and the international system before the First World War, see Horowitz, supra note 68. See also Aksakal, M., ‘Not “by those Old Books of International Law, but Only by War”: Ottoman Intellectuals on the Eve of the Great War’, (2004) 15 Diplomacy and Statecraft 507CrossRefGoogle Scholar.