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China's Approaches to International Law since the Opium War

  • PHIL C. W. CHAN

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.

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1 Goldstein, A., ‘Parsing China's Rise: International Circumstances and National Attributes’, in Ross, R. S. and Zhu, F. (eds.), China's Ascent: Power, Security, and the Future of International Politics (2008), 55, 74–5.

2 The most notable example is embodied in Art. 38(1)(c) of the Statute of the International Court of Justice, which states that ‘[t]he Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply the general principles of law recognised by civilised nations’.

3 Marks, S., ‘State-Centrism, International Law, and the Anxieties of Influence’, (2006) 19 LJIL 339, 347.

4 Xifaras, M., ‘Commentaire sur “Les Ambivalences Imperials” de Nathaniel Berman’, in Jouannet, E. and Ruiz-Fabri, H. (eds.), Impérialisme et Droit International en Europe et aux Etats-Unis: Mondialisation et Fragmentation du Droit: Recherches sur un Humanisme Juridique Critique (2007), 183, as quoted in Jouannet, E., ‘Universalism and Imperialism: The True–False Paradox of International Law?’, (2007) 18 EJIL 379, 406.

5 Svarverud, R., ‘Re-Constructing East Asia: International Law as Inter-Cultural Process in Late Qing China’, (2011) 12 Inter-Asia Cultural Studies 306, 310.

6 H.-P. Chang, Commissioner Lin and the Opium War (1970), ix.

7 The starting premise, when it comes to China's historical interactions with international law, invariably relates to how China, self-identified as the Middle Kingdom, did not possess any conception of law governing relations among states. In his 1990 Hague Academy of International Law Lectures, Wang Tieya noted that international law, in the sense of law among nations, in fact had been operative in ancient China during the Spring and Autumn (BC 722–476) and Warring States periods (BC 476–221) before China became a unified state under the Qin dynasty in BC 221: ‘International Law in China: Historical and Contemporary Perspectives’, (1990–II) 221 Recueil des Cours 195, 205–13; see also Zhang, Y., ‘System, Empire and State in Chinese International Relations’, (2001) 27 Review of International Studies 43. Adherents to the English School of international relations rely on ancient China during the two periods and its resemblance to the modern state-based international system to support their argument that an international society existed since ancient times: see Zhang, X., ‘China in the Conception of International Society: The English School's Engagements with China’, (2011) 37 Review of International Studies 763, 765–8.

China for millennia was the ruling centre of an international system that J. K. Fairbank and his colleagues, in The Chinese World Order: Traditional China's Foreign Relations (1973), call ‘the Chinese world order’, which A. B. Bozeman finds to have ‘proved to be more enduring and successful than the comparable order of any other historical nation’: Politics and Culture in International History (1960), 143. While the door to the ‘family of nations’ remained closed to China even after the First World War, imperial China embraced inclusion of any ‘barbarians’ into the Chinese world order so long as they acknowledged the superiority of Chinese civilization and assimilated themselves into Chinese culture. The Westphalian notion of sovereign equality of states was alien to the Chinese world order politically and culturally, but it was the clash of empires, not of civilizations as Huntington, S. P. has argued (‘The Clash of Civilizations?’, (Summer 1993) 72 Foreign Affairs 22; The Clash of Civilizations and the Remaking of World Order (1996)), between China and Western powers that rendered military conflicts inevitable: see A. J. Bacevich, American Empire: The Realities and Consequences of US Diplomacy (2002); U. Beck and E. Grande, Cosmopolitan Europe (2007); Chen, L., ‘Universalism and Equal Sovereignty as Contested Myths of International Law in the Sino-Western Encounter’, (2011) 13 Journal of the History of International Law 75; H. C. d’Encausse and M. Rodinson, Islam and the Russian Empire: Reform and Revolution in Central Asia (2009); N. Ferguson, Colossus: The Price of America's Empire (2004); C. A. Ford, The Mind of Empire: China's History and Modern Foreign Relations (2010); H. James, The Roman Predicament: How the Rules of International Order Create the Politics of Empire (2006); D. Lieven, Empire: The Russian Empire and its Rivals (2002); Liu, L. H., ‘The Desire for the Sovereign and the Logic of Reciprocity in the Family of Nations’, (1999) 29:4Diacritics 150; L. H. Liu, The Clash of Empires: The Invention of China in Modern World Making (2004); C. S. Maier, Among Empires: American Ascendancy and its Predecessors (2006); A. Peyrefitte, The Immobile Empire (1992); E. H. Pritchard, The Crucial Years of Early Anglo-Chinese Relations, 1750–1800 (2000); Ruskola, T., ‘Raping Like a State’, (2010) 57 UCLA Law Review 1477; R. Terrill, The New Chinese Empire (2003); J. Zielonka, Europe as Empire: The Nature of the Enlarged European Union (2006). As Zielonka explains, ‘[t]he study of empire demands a focus on the scope and structure of governance, the nature of borders, centre–periphery relations and respective civilising missions. Studies of hegemony take power seriously, but are less interested in the actors, their individual features and complex relationships. Studies of empire, on the other hand, show that interdependence between periphery and centre often works to the former's advantage (regardless of all material or normative asymmetries). Peripheries are also able to drag the centre into their parochial conflicts. Besides, empires often try to “civilise” and “institutionalise” their peripheries, rather than simply attempting to conquer or exploit them, as is sometimes assumed by scholars of hegemony’: ‘Empires and the Modern International System’, (2012) 17 Geopolitics 502, 506. Contra, see Rosenau, J., ‘The Illusion of Power and Empire’, (2005) 44 History and Theory 73.

Ruskola, ibid., 1487, maintains that ‘[f]rom this perspective, China's historic status in international law is especially ironic. Because it conceptualized political community in terms of kinship, it was ultimately excluded from the Family of Nations. Evidently, the real ground for China's exclusion was not that it made a primitive category mistake – confusing the logics of politics and kinship – but the simple fact that it belonged to the wrong political family’ (emphasis in original). The Chinese world order was one in fact once considered by European powers to be ‘a political superior’: ibid., 1503. As E. Hayot puts it, ‘modern Europe encounters China as the first contemporaneous civilizational other it knows, and not as a “tribe” or nation whose comparative lack of culture, technology or economic development mitigated the ideological threat it posed to progressivist, Eurocentric models of world history’: The Hypothetical Mandarin: Sympathy, Modernity, and Chinese Pain (2009), 10 (emphasis in original). Similarly, J. A. Hobson opined that Asia was the ‘great test of Western imperialism’ because Asian civilizations, as opposed to Africa that was more easily colonized as ‘savages or children’, were ‘as complex as our own, more ancient and more firmly rooted by enduring custom’: Imperialism: A Study (1902), 182.

8 J. K. Fairbank, ‘The Early Treaty System in the Chinese World Order’, in Fairbank, ibid., 257, 273.

9 Zhang (2001), supra note 7, 56.

10 Mancall, M., ‘The Persistence of Tradition in Chinese Foreign Policy’, (1963) 349 Annals of the American Academy of Political and Social Science 14, 17. Ch’ien Mu argues that unlike dynasties ruled by Han Chinese when power concentrated among scholars, during the Yuan and Qing dynasties power was invested primarily among the Mongols and the Manchus, respectively, as tribal groups. However, the Qing court did not openly reject scholars whose apparent centrality in the bureaucracy was still preserved. The traditional examination system was retained as ‘a mere propaganda device’ and ‘a special favour to those Chinese who sided with the alien regime’: Traditional Government in Imperial China: A Critical Analysis (trans. C. Hsüeh and G. O. Totten) (1982), 126–35.

11 Li, Z., ‘Traditional Chinese World Order’, (2002) 1 Chinese Journal of International Law 20, 39 (emphasis in original).

12 See, generally, V. Hansen, The Open Empire: A History of China to 1600 (2000); J. Waley-Cohen, The Sextants of Beijing: Global Currents in Chinese History (1999).

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

14 A. G. Frank, ReORIENT: Global Economy in the Asian Age (1998), 126.

15 K. Pomeranz, The Great Divergence: China, Europe, and the Making of the Modern World Economy (2000), 70.

16 Zhang (2011), supra note 7, 768. Ruskola, supra note 7, 1485, argues that ‘[i]n historical analysis, periodization is inevitable but never innocent. Evidently there is no single date that constitutes the objective point of origin of international law. Yet the choice of 1648 and the Treaty of Westphalia – like any other date – has vital political and ideological consequences. With a historical perspective focusing on 1648, the official story of international law becomes a history of the emergence of the liberal norm of sovereign equality among secular nation-states. This story is not necessarily untrue, but it is misleading insofar as it concerns only Europe. If we instead follow Carl Schmitt, for example, and date our account of modern international law from 1492 and Europe's “discovery” of the New World, the story changes significantly. From this perspective, the narrative becomes not simply one of increasing inclusion and equality within Europe, but also of violent exclusion of others outside Europe, on the basis of religious, civilizational, and racial difference’ (emphasis in original; internal citations omitted). Ruskola, ibid., fn. 18, adds that ‘it is important to note that, at a minimum, it is an exaggeration even as a story about Europe. For example, many of the aspects of modern international law that are attributed to the Peace of Westphalia did not in fact emerge even in Europe until later’ (internal citation omitted).

17 A. Watson, The Evolution of International Society: A Comparative Historical Analysis (1992), 3.

18 P. Duara, Sovereignty and Authenticity: Manchukuo and the East Asian Modern (2003), 9 and 19; J. Kelly and M. Kaplan, Represented Communities: Fiji and World Decolonization (2001), 1–4.

19 Liu (2004), supra note 7.

20 Edwards, R., ‘The Old Canton System of Foreign Trade’, in Li, V. H. (ed.), Law and Politics in China's Foreign Trade (1977), 360; Edwards, R., ‘Imperial China's Border Control Law’, (1987) 1 Journal of Chinese Law 33; Edwards, R., ‘China's Practice of International Law – Patterns from the Past’, in Macdonald, R. St. J. (ed.), Essays in Honour of Wang Tieya (1994), 243.

21 Mancall, supra note 10, 19.

22 Herrick, K., ‘The Merger of Two Systems: Chinese Adoption and Western Adaptation in the Formation of Modern International Law’, (2005) 33 Georgia Journal of International and Comparative Law 685, 693. D. C. Kang observes that the three most Sinic states – Korea, Japan, and Assam (Vietnam) – ‘were centrally administered bureaucratic systems based on the Chinese model. They developed complex bureaucratic structures and bear more than a “family resemblance” in their organization, cultures, and outlooks. This form of government, along with the calendar, language and writing system, bureaucracy, and education system, was derived from the Chinese experience, and the civil-service examination in these countries emphasized a knowledge of Chinese political philosophy, classics, and culture’: East Asia before the West: Five Centuries of Trade and Tribute (2010), 33. Of the three Sinic States, Japan under the Tokugawa gradually withdrew from the Sino-centric tribute system and reproduced a Japanese-centric tribute system in which Japan sought to replace China as the virtuous and supreme civilization vis-à-vis its neighbours: see S. Suzuki, Civilization and Empire: China and Japan's Encounter with European International Society (2009).

23 B. I. Schwartz, ‘The Chinese Perception of World Order: Past and Present’, in Fairbank, supra note 7, 276, 277.

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.

25 Zhang and Buzan, ibid., 19.

26 Zhang (2001), supra note 7, 53. See also Hall, R. B., ‘Moral Authority as a Power Source’, (1997) 51 International Organization 591.

27 Zabrovskaia, L. V., ‘The Traditional Foreign Policy of the Qing Empire: How the Chinese Reacted to the Efforts of Europeans to Bring the Chinese into the Western System of International Relations’, (1993) 6 Journal of Historical Sociology 351, 352–3.

28 Mancall, supra note 10, 20–1.

29 J. K. Fairbank, Trade and Diplomacy on the China Coast (1953), 14. For a discussion of the historical event and the significance of kowtow in imperial China, see J. L. Hevia, Cherishing Men from Afar: Qing Guest Ritual and the Macartney Embassy of 1793 (1995).

30 See I. C. Y. Hsü, China's Entrance into the Family of Nations: The Diplomatic Phase, 1858–1880 (1960), 123–5.

31 Ibid., 125.

32 G. W. Gong, The Standard of ‘Civilization’ in International Society (1984), 144.

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.

34 Gong, supra note 32, 145.

35 Ruskola, supra note 7, 1531–2.

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.

37 M. C. Wright, The Last Stand of Chinese Conservatism: The T’ung-Chih Restoration, 1862–1874 (1962), 243.

38 Fairbank, supra note 8, 262.

39 Li, H., ‘Tuochou Qiuan Zhe’, Li Hongzhang Quanji: Zougao, Vol. 3 (1998), 1541, as quoted in Suzuki, S., ‘China's Perceptions of International Society in the Nineteenth Century: Learning More about Power Politics?’, (2004) 28 Asian Perspectives 115, 132.

40 As J. L. Brierly has stated, ‘[t]he ordinary treaty by which two or more states enter into engagements with one another for some special object can very rarely be used even as evidence to establish the existence of a rule of general law; it is more probable that the very reason of the treaty was to create an obligation which would not have existed by the general law, or to exclude an existing rule which would otherwise have been applied. Still less can such treaties be regarded as actually creating law’: The Law of Nations (6th ed. rev. Humphrey Waldock) (1963), 57.

41 As quoted in Suzuki, supra note 39, 135–6.

42 Gong, supra note 32, 154.

43 Hsü, supra note 30, 145.

44 Ibid., 136–7.

45 Ibid., 138.

46 Ibid., 132–4.

47 Wright, supra note 37, 231.

48 Gong, supra note 32,, 146.

49 Jouannet, supra note 4, 382.

50 Gong, supra note 32, 93.

51 L. Oppenheim, International Law: A Treatise (1905), 109.

52 Ibid., 108.

53 M. Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (2002), 103 (emphasis in original), quoting H. White, Tropics of Discourse: Essays in Cultural Criticism (1978), 151–2.

54 Gong, supra note 32, 50.

55 Ibid., 98.

56 Westlake, J., Collected Papers of John Westlake (ed. Oppenheim, L.) (1914), 103, as quoted in Gong, ibid., 59.

57 Ruskola, supra note 7, 1525.

58 Gong, supra note 40, 164. Indeed, Japan proceeded to colonise Korea by asserting that Korea was uncivilized: see A. Dudden, Japan's Colonization of Korea: Discourse and Power (2005).

59 Oppenheim, supra note 51, 33–4.

60 See, e.g., Lauren, P. G., ‘Human Rights in History: Diplomacy and Racial Equality at the Paris Peace Conference’, (1978) 2 Diplomatic History 257; N. Shimazu, Japan, Race, and Equality: The Racial Equality Proposal of 1919 (1998).

61 Koskenniemi, supra note 53, 135.

63 Ibid., 135–6.

64 Hall, W. E., A Treatise on International Law (8th ed. Higgins, A. Pearce) (1924), 130.

65 Ibid., 131.

66 Kirby, W. C., ‘The Internationalization of China: Foreign Relations at Home and Abroad in the Republican Era’, (1997) 150 China Quarterly 433, 433.

67 Wei, J. L., Myers, R. H., and Gillin, D. G. (eds.), Prescriptions for Saving China: Selected Writing of Sun Yat-sen (1994), 225.

68 Horowitz, R. S., ‘International Law and State Transformation in China, Siam, and the Ottoman Empire during the Nineteenth Century’, (2005) 15 Journal of World History 445, 482.

69 Kirby, supra note 66, 437 (emphasis in original).

70 A. D. W. Forbes, Warlords and Muslims in Chinese Central Asia: A Political History of Republican Sinkiang (1986), 157.

71 M. Mancall, China at the Center: 300 Years of Foreign Policy (1984), 250.

72 J. W. Garver, Chinese–Soviet Relations, 1935–1945 (1988), 178.

73 Kirby, supra note 66, 437–8.

74 Ibid., 438.

75 Gotberg, B., ‘The End of Conquest: Consolidating Sovereign Equality’, in Sandholtz, W. and Stiles, K. (eds.), International Norms and Cycles of Change (2008), 55, 65.

76 Article XI of the Covenant of the League of Nations stated that ‘(1) Any war or threat of war, whether immediately affecting any of the Members of the League or not, is hereby declared a matter of concern to the whole League, and the League shall take any action that may be deemed wise and effectual to safeguard the peace of nations. In case any such emergency shall arise the Secretary-General shall on the request of any Member of the League forthwith summon a meeting of the Council. (2) It is also declared to be the friendly right of each Member of the League to bring to the attention of the Assembly or of the Council any circumstance whatever affecting international relations which threatens to disturb international peace or the good understanding between nations upon which peace depends.’

77 Gotberg, supra note 75, 65–6.

78 Ibid., 69.

79 Hao, Z., ‘May 4th and June 4th Compared: A Sociological Study of Chinese Social Movements’, (1997) 6:14Journal of Contemporary China 79.

80 As quoted in Kirby, supra note 66, 440.

81 Quigley, H. S., ‘Extraterritoriality in China’, (1926) 20 AJIL 46, 51.

82 As quoted ibid., 46.

83 As quoted ibid.

84 As quoted in W. W. Willoughby, China at the Conference (1922), 118–19.

85 Treaty between the United States of America, Belgium, the British Empire, China, France, Italy, Japan, the Netherlands, and Portugal, signed at Washington, D.C., on 6 February 1922, Art. I.

86 Quigley, supra note 81, 64.

87 The International Court of Justice in Fisheries Jurisdiction Case (Federal Republic of Germany v. Iceland), Judgment, ICJ Rep. (1973), 49, 63, stated that ‘[i]nternational law admits that a fundamental change in the circumstances which determined the parties to accept a treaty, if it has resulted in a radical transformation of the extent of the obligations imposed by it, may, under certain conditions, afford the party affected a ground for invoking the termination or suspension of the treaty. This principle, and the conditions and exceptions to which it is subject, have been embodied in Article 62 of the Vienna Convention on the Law of Treaties, which may in many respects be considered as a codification of existing customary law on the subject of the termination of a treaty relationship on account of change of circumstances.’

88 As quoted in Wang, supra note 7, 346–7.

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.

94 Turner, S., ‘Extraterritoriality in China’, (1929) 10 British Year Book of International Law 56, 61.

95 See C. Ku, ‘Change and Stability in the International System: China Secures Revision of the Unequal Treaties’, in Macdonald, supra note 20, 447.

96 Callahan, W. A., ‘Nationalizing International Theory: Race, Class and the English School’, (2004) 18:4Global Society 305, 321.

97 Zhang (2011), supra note 7, 773.

98 Bell, C., ‘China and the International Order’, in Bull, H. and Watson, A. (eds.), The Expansion of International Society (1984), 255, 255.

99 For a detailed discussion of the legal status of Taiwan and the legality of the use of force in a cross-Taiwan Strait conflict, see Chan, P. C. W., ‘The Legal Status of Taiwan and the Legality of the Use of Force in a Cross-Taiwan Strait Conflict’, (2009) 8 Chinese Journal of International Law 455.

100 Signed at Montevideo on 26 December 1933.

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, 227, 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, 74: ‘Ex factis jus oritur is an expression of truth that no law can ignore save at its peril’.

107 Shaoqi, Liu, ‘On Internationalism and Nationalism’, broadcast by North Shensi Radio, 9 November 1948, reprinted in (14 December 1948) 5:4China Digest 6, as quoted in Steiner, H. A., ‘Mainsprings of Chinese Communist Foreign Policy’, (1950) 44 AJIL 69, 74–5.

108 Steiner, ibid., 77.

109 For a discussion of semi-colonialism and its relationship to concepts of informal empire in China, see Osterhammel, J., ‘Semi-Colonialism and Informal Empire in Twentieth Century China: Towards a Framework of Analysis’, in Mommsen, W. H. and Osterhammel, J. (eds.), Imperialism and After: Continuities and Discontinuities (1986), 290.

110 Ibid., 80.

111 As quoted ibid., 93.

112 As quoted ibid.

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

114 Chen, T., ‘The People's Republic of China and Public International Law’, (1984) 8 Dalhousie Law Journal 3, 22.

115 S/PV.527, 28 November 1950, 4.

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, 248.

120 L. Chu, ‘Refute the Absurd Theory Concerning International Law by [Chen T’iqiang]’, People's Daily, 18 September 1957, as quoted in Chiu, ibid., 248–9. (Chiu notes, ibid., fn. 15, that Chen had a doctorate in international law from the University of London and until he was purged in 1958 had been Head of Division of International Law of the Institute of International Relations at the Chinese Academy of Sciences.) Similarly, Liu Fengming maintained that ‘[s]o far as our country is concerned, [modern international law] is an indispensable legal means to realize socialist modernization and construction. For instance, in order to explore resources near our coast, we must study the legal status of the continental shelf, fishing zone and exclusive economic zone and international norms and customs between states in delimiting these regions. In order to introduce foreign advanced technology, we must immediately confront the problems of international patent, protection of trademarks, intellectual property and others. In order to create a safe and peaceful international environment for our socialist modernization construction, we must actively join international legislative activities and strengthen the struggle within the United Nations so as to form the broadest international united front for anti-hegemonism for the purpose of preventing and delaying the outbreak of World War’: Xiandai Guoji fa Gangyao [Essentials of Modern International Law] (1982), 5, as quoted in Chiu, H., ‘Chinese Attitudes toward International Law in the Post-Mao Era, 1978–1987’, (1987) 21 International Lawyer 1127, 1129. Such a policy-oriented approach to international law, espoused also by many Western scholars, was strongly criticized by Pan Baocun, who maintained in 1985 that [t]he “policy-oriented” theory considers power as the nucleus of international politics and international law. They regard policy as the determining factor [in formulating international law] and the latter is the concrete expression of the external policy of a state. It is true that international political relations have comparatively significant influence on the formulation of international law and each state's attitude toward international law is based on its external policy; however, international law is a matter of superstructure and it is, in the final analysis, decided by international economic relations. It is possible that imperialist big powers may impose their will on the international community and thus influence the enactment of international law. However, the international community has its own objective rules of development which cannot be diverted by will of imperialist big powers and the development of international law cannot be separated from the [objective] rules of the development of the international community. Therefore, we cannot just observe the phenomenon at a given moment in the international community and mix up the power politics of big powers, external policy and international law’: ‘On the Scientific Nature of International Law’, (1985) 5 Studies in Law 84, as quoted in Chiu, ibid., 1130, fn. 9. Wei Min likewise criticized the policy-oriented approach as ‘[mixing] law and policy and [attempting] to make international law to follow the change of policy of certain big powers.. . . It considers the external policy [of states] as the basis of international law and even to consider external policy as international law. To view law and policy as the same is baseless’: Wei, M., (ed.), Guoji Fa Gailun [Introduction to International Law] (1986), 38, as quoted in Chiu, ibid. Wei believed that an objective yet realistic approach should be taken: ‘How should one correctly explain the function of international law in international relations? First, international law serves as a criterion for identifying fundamental issues of right and wrong in the international [community].. . . Second, it serves as legal forms of self-restraint and mutual restraint on the basis of equality among countries in order to establish normal international order.. . . Third, it serves as legal forms for establishing certain concrete international rights and duties for countries in the process of their mutual intercourse.. . . The above three roles of international law are interrelated and reciprocally supplemented, i.e., one cannot emphasize one role to the exclusion of the others. One should view the three roles as an integrated one to observe and study the function of international law’: ibid., 15–18, as quoted in Chiu, ibid., 1,131, fn. 12.

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, 243.

122 J. C. Hsiung, Law and Policy in China's Foreign Relations: A Study of Attitudes and Practice (1972), 29.

123 Fifield, R. H., ‘The Five Principles of Peaceful Co-existence’, (1958) 52 AJIL 504, 504.

124 Wang, supra note 7, 274.

125 Ibid., 276.

126 See Lichtenstein, N. G., ‘The People's Republic of China and Revision of the United Nations Charter’, (1977) 18 Harvard International Law Journal 629.

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, 955.

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), 35, 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, 304.

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, 325. 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, 442.

141 Kent, A., ‘China's International Socialization: The Role of International Organizations’, (2002) 8 Global Governance 343, 349. 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 391.

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 645.

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, 80.

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, 366.

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), 15, 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, 341, 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, 300.

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 507.

* LLB, University of Hong Kong; LLM, Durham; PhD, National University of Singapore. Senior Research Fellow, Faculty of Law, Katholieke Universiteit Leuven []. I am grateful to Simon Chesterman for his comments and suggestions on my PhD thesis from which this article derives. Research in this article was presented at the Department of History and Art History, University of Otago (17 March 2010), the 29th Australian and New Zealand Law and History Society Annual Conference: ‘Owning the Past: Whose Past? Whose Present?’ in Melbourne (13–15 December 2010), and the Fifth International Global Studies Conference: ‘Eurasia and Globalization: Complexity and Global Studies’, Lomonosov Moscow State University (20–22 June 2012).

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