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Western International Law and China’s Confucianism in the 19th Century. Collision and Integration

Yang Zewei*

Professor of Law, Wuhan University, Wuhan, China

The Confucian world view in China was based on the concept of the Celes- tial Empire of China and embodied in the Tributary System. The Chinese view could not fit into the equal international relationship asserted among European countries. In the mid-19th century, especially after the Opium Wars, international law embarked on a furious collision with Chinese tra- ditional Confucianism. Threatened by forces of Western powers, the Qing government had no choice but to come to compromise with the Western powers. Consequently, the Confucian world order based on the Celestial Empire of China collapsed and Chinese officials and scholars began to learn, accept and apply international law.

Introduction

Due to its special history and culture, China did not build a diplomatic system based on the principle of sovereign equality. The Confucian world view based on the concept of the Celestial Empire and the Tributary System lasted until the mid-19th century. The Opium War (1839–1842)1 not only

* Ph. D. E-mail: yangzewei@hotmail.com. 1) From the late eighteenth century, Britain began to export opium to China. In 1838 more than 40000 chests of opium were exported to China. In consequence, opium flooded China and the Qing Government fell into a severe financial crisis because the outflow of silver caused its soaring price. In the end of 1838, Emperor Daoguang sent Mr. LIN Zexu as the imperial missioner to ban opium in Guangzhou. In June, 1840, the British government,

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forced China to learn about the modern international relations, but also forced a way for international law, a European norm of a new international relationship, into China. From then on, international law began to collide as well as integrate with Chinese traditional Confucianism.2 Threatened by the force of Western powers, the Qing government had no choice but to come to compromise with Western powers. Consequently, the Confucian world order based on the Celestial Empire of China collapsed and Chinese officials and scholars began to learn, accept and apply international law. Meanwhile, although the Qing Government had been forced to enter into the international community and an international legal system, international law played little role in China’s foreign relations. Instead the Unequal Treaty Regime played an important role.

This article includes four sections. Section I is an introduction to the Chinese Confucian world order regime, centered on the Celestial Empire of China and the Tributary System. Section II discusses the collision between modern international law and Chinese traditional Confucianism regarding world order, international relations, foreign trade and treaty regime. Section III discusses the integration of modern international law and Confucianism, including the introduction of modern international law into China, the Unequal Treaty Regime and the Tsungli Yamen (Office of Foreign Affairs). Section IV offers a tentative conclusion that the collision between western

allied with France and the USA, launched the Opium War against China. However, for the British government the opium issue merely gave it an excuse to go to war against China – without it the conflict would still have occurred. As a result, China was defeated and was forced to sign the Treaty of Nanking on 29 August 1842 and the Treaty of the Bogue on 8 October 1943. 2) Confucianism is a school of political and ethical philosophy, not a religion, founded by Confucius (551–479 BC) and his disciples. Since the Han Dynasty, Confucianism had become the mainstream of feudalism in China, and Confucianists developed new theories to meet the needs of different feudal dynasties. As a result, Confucianism had been domi- nating Chinese academy for more than 2000 years and Confucian classics had been the guiding rules for feudal authorities. Meanwhile, Confucianism, as the main body of Chinese traditional culture, had played an irreplaceable role in maintaining national integrity and stability, and provided a huge contribution to preserve and develop traditional culture. See Li Zhaojie, Legacy of Modern Chinese History: Its Relevance to the Chinese Perspective of the Contemporary International Legal Order, Singapore Journal of International & Comparative Law, Vol. 5, 2001, p. 314. J. K. Fairbank (ed.), The Chinese World Order: Traditional China’s Foreign Relations, Cambridge 1968, p. 6. Mark Mancall, China at the Center, 300 Years of Foreign Policy, London 1984, pp. 22–23.

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modern international law and Confucianism ended with the latter’s com- promise. The integration of the two, as a result of coercion from Western powers, in practice helped to promote China’s modernization.

I. World Order According to Confucianism

The Confucian world order is based on the view of the Celestial Empire of China and the Tributary System.

A. The Celestial Empire of China

In 221 B.C., Emperor Qin Shi Huang built a unified country. Then, a regime of the Celestial Empire of China gradually came into being, which had been the basic policy on foreign relations in the later 2000 years of history. According to the regime of the Celestial Empire of China, Chinese authority regarded China as a Celestial Empire with ultimate supremacy over other countries with China as the only civilized country; then the world was entered on Chinese Celestial Empire, with neighboring countries as “barbarians” or “dependent countries”, which should pay tributes to China. In order to show its grandeur and generosity, China always granted more gifts to these tributary states than their tributes.

At least three factors can be identified leading to the establishment of the regime of the Celestial Empire of China:

Firstly, a wrong concept about geography.3 Geographically speaking, China is in a relatively independent and locked

area with seas to its east and south, and deserts and mountains in its west and southwest.4 As a result, since ancient times the Chinese have believed that China lies in the center of the world, which explains why China is always referred to as zhongguo (central state) or zhongtu (central land). For example, the work QingChao WenXian TongKao (A Comprehensive Analysis of Civil Institutions of the Qing Dynasty), composed in the mid-Qing Dy- nasty, pointed out that “China surrounded by seas lies in the center of the world; those, living in the border land beside seas, are yi (people living in

3) See Li Zhaojie, International Law in China: A Legal Aspect of the Chinese Perspective of World Order, SJD thesis at the University of Toronto 1996, pp. 9–11. 4) See Wang Tieya, International Law in China: Historical and Contemporary Perspectives, Recueil des Cours, 1990, II, p. 215.

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the frontiers), and overseas countries are yi too.”5 Here, the word “yi” con- notes barbarians or tributaries.

Secondly, imbalance of development between China and neighboring states.

China had created a splendid culture superior to neighboring states and had long taken the lead in the cultural development in the world. Therefore, generally speaking, the neighboring states had long been under the influence of Chinese culture. It is not surprising that Chinese authorities gradually formed a sense of superiority over “foreign” countries. According to Gong- yang Shou, a famous ancient scholar, one of the most important reasons Confucius wrote Chun Qiu (Spring and Autumn) was to emphasize China’s superiority over foreign states.6 Mencius (372 BC – 289 BC) also says that “I only know China makes foreign states change, but never know China is changed by foreign states.” 7 Mathew Ricci, an Italian scholar, pointed out that “Chinese believe China is the only country in the world that deserves praise and commendation. In terms of its grandeur, system and academic achievements, they regard foreigners as unreasonable barbarians. In their view, no other king, dynasty or civilization deserves commendations.”8 Since foreign states are on the outer fringes of Chinese civilization, the only reason for them to conduct an intercourse with China is to learn from the admirable Celestial Empire.

Thirdly, the political needs of the emperors. In order to maintain the throne, every emperor claimed himself to be the

emperor chosen by Heaven to own and govern the world, thus claiming that “under the whole heaven, there is no land that is not the Emperor’s, and within the sea-boundaries of the land, there is none who is not a subject of the Emperor”.9 The theory of the divine right of emperors, integrated with Confucian cardinal guides and constant virtues which value priority

5) QingChao WenXian TongKao (A Comprehensive Analysis of Civil Institutions of the Qing Dynasty), Vol. 293. 6) Li Xueqing (ed.), Commentary on Gongyang’s Chun Qiu (Spring and Autumn), Peking University Press 1999, p. 400. 7) Mencius, Collected Works of Mencius, China Book Press 1988, p. 44. 8) Mathew Ricci and Louis Gallagher, China in the Sixteenth Century: The Journals of Mathew Ricci, translated by He Gaoji etc., China Book Press 1983, p. 18. 9) Book of Odes (in Chinese), Chap. II.

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in place or rank, verifies the absolute authority of the monarchy who has the supreme power and no one else is higher than or equal with him.

Two factors repose at the center of the view of China’s Celestial Empire: de (the virtuous conduct) and li (proper ceremony).

De, as the political ideology of Confucianism, was a basic guiding prin- ciple for the emperor to deal with foreign relations. De covers a wide range of contents, including religion, ethics and national policy, and even “every virtuous conduct in the world”.10 Confucianism lays special emphasis on the self-cultivation of virtues, holding that the virtue of an emperor would play a crucial role in maintaining the harmony of the world. So, an emperor should rule the country by a kingly way, instead of by force of dictatorship. It is stated in liji – zhongyong (The Book of Rites – The Doctrine of The Golden Mean), one of the Confucian classics, that an emperor should treat others kindly in order to win their hearts. How to treat others kindly? The general principle was to employ a pacification policy in order to achieve conciliation between ethnic groups or states, and at the same time grant more economic benefits to them through the Tributary System. Thus, the feudal emperors, with supreme virtues, maintained the unification of the world.

Li is another crucial factor in the construction of Confucian world order. Guanzhong, an ancient statesman, pointed out that “‘Call the wavering with the proper ceremony; cherish the remote with virtuous conduct; when both of them are shown invariably, there are none but will be won.”11 The factors de and li play together in order to guide the world into a harmony. “Proper ceremonies are employed to build a harmonious world.”12 Li explicates the structure and order of the relations between China and foreign countries. The proper ceremonies, such as conferrence of titles of nobility and the tributary system, constructed the emperor – subject relationship between China emperors and foreign kings, thus maintaining a harmonious world.

According to Confucianism, the purpose of a united world, rule by a kingly way and rule of virtue is to build a harmonious and orderly society. In the case of the relationship between China and small countries, it means that a big country should be kind to small countries, instead of coercing or

10) See Liu Zehua, A History of Politics in the Qin Dynasty, Nankai University Press 1984, p. 38. 11) Zuozhuan (Zuo Qiuming’s Commentary on Chunqiu), China Book Press 1980. 12) The Analects of Confucius, China Book Press, 1980.

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threatening them, while a small country should be sincere to a big country, full of respect and humility. 13 Accordingly, Confucianism’s influence on the idea of Celestial Empire is manifested in the fact that each country has its own position in the system and each fosters its harmonious relationship with others.

Thanks to Confucianism, the concept of Celestial Empire of China is enriched with characteristics of anti-violence and anti-war. Comparatively speaking, before the mid-19th century, China-dominated East Asia was indeed exposed to less violence and wars than afterwards. In the Ming Dy- nasty, Emperor Zhu Yuanzhang made an imperial edict which stated “Those small remote barbarian states, if only constituting no threat to China, shall not be attacked by the Empire.”14 Then Emperor Zhu decided that more than 20 states, including Korea and Japan, were “No-attacking states”, and instructed his descendants to abide by his decision.

It should be noted that the scope of Confucian world order is not quite definite, including the so-called “barbarian” subordinate neighboring states, such as Korea, Luichiu, Annam, Burma, and other countries in Central and Southeast Asia, sometimes Japan. Besides, the countries of these areas will- ing to establish a foreign relationship with China in a subordinate status, are also within the scope of the Confucian world order.15

B. The Tributary System

The Confucian world order, based on the Celestial Empire ideology, pro- duced a wide range of diplomatic norms and systems, and consequently established the unique tributary system in East Asia.16

The Tributary System is a comprehensive and intricate system, through which the Empire of China established relationship with neighboring vassal states. According to regulations made in the Qing Dynasty, the Tributary System mainly includes the following: 1) the Emperor’s appointment of

13) Mencius, Collected Works of Mencius, China Book Press 1988, p. 13. 14) See The Ming Shi-lu (also known as the Veritable Records of the Ming Dynasty, Cathay Bookshop 1983, pp. 485–486. 15) See Wang Tieya, International Law in China: Historical and Contemporary Perspectives, Recueil des Cours, 1990, II, p. 215. 16) See J. K. Fairbank and S. Y. Teng, On the Ching Tributary System, Harvard Journal of Asiatic Studies, Vol.6, No.2, 1941, p. 137.

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the ruler of a vassal state, recognition of its tributary status, and conference of an official seal on the ruler to send an official communication; 2) the ruler’s honorific title in the hierarchy ladder of the Empire of China; 3) only Chinese calendar date allowed in all official communications, including the memorial to the throne; 4) presenting memorials to the throne according to regulations; 5) offering the local products to the throne as a symbolic tribute; 6) escort of the tribute mission from the imperial post to the im- perial palace; 7) the tribute mission’s obeisance of Chinese manners when presenting himself before the emperor, especially the kowtows (namely, prostrating himself three times and striking his head on the ground thrice at each prostration); 8) grant of gifts to the tribute mission by the emperor; and 9) some trade privileges in the capital and across borders. Besides, the Tributary System contains regulations on the tribute commission’s frequency and scale, its entry and departure, its residence in the capital, and its con- duction of trade and so on.17

In fact, the Tributary System is conducive to maintaining the Chinese Empire and the tributary states.18 To the Chinese Empire, it is not only a way to acknowledge and maintain the world order centered on China, but also one safeguard of the Empire of China, because the surrounding countries as an “outer fence” kept the Empire from barbarians’ aggressions. So the Tributary System helped to protect Chinese Empire’s security and sovereign integrity. The tributary states even benefited more. First, thanks to the title from the Chinese emperor, the ruler of the tributary state legal- ized his throne, and improved his authority before his subjects. Second, the tributary states were not only protected by China from any foreign invasion, but also able to ask for China’s aids in natural disasters. Third, because of the Tributary System, the tributary states not only received much more valuable gifts from the emperor than the tribute which they provided to China, but also were permitted to conduct trade with China.19 Of course,

17) See the Collected Statutes of Great Qing Empire, 1818. 18) See Wang Tieya, International Law in China: Historical and Contemporary Perspectives, Recueil des Cours, 1990, II, p. 221. 19) See J. K. Fairbank and S. Y. Teng, On the Ching Tributary System, Harvard Journal of Asiatic Studies, Vol.6, No.2, 1941, pp. 140–141.

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the Tributary System promoted cultural ties as well.20 In short, the Tributary System played an important role in political, economic and cultural relations.

In some sense, the Tributary System is a comparatively stable system,21 within which China’s foreign relations were developing. In other words, to the Chinese, any type of foreign intercourse must be adapted into this system.22 For example, foreign envoys were treated as tributary missions, and the sending of diplomatic envoys of China was also within the scope of the Tributary System, regardless of their duty. The most vivid example was that in the Ming Dynasty when Zheng He and his fleet went on seven expeditions from 1403 to 1433, even reaching the Indian Ocean and the east coast of Africa.

In accordance with the Tributary System, China had established cor- responding agencies. For example, in the Ming Dynasty the Ministry of Rites was in charge of supervising the relations with tributary states, and the Ministry of War was in charge of relations with clans and tribes. In the Qing Dynasty, Li Fan Yuan (the ministry dealing with vassal states affairs) was established to deal with the relations with Mongolians, and later with barbarians as well. It is thus clear that the Ministry of Rites and Li Fan Yuan are two main agencies in the Tributary System. Besides, there were some other agencies involved in the procedural tasks, for example, Hui- Tong Guan providing residence for tributary commissions, Hung-Lu Si supervising the official rites, and the Ministry of War escorting tributary commissions to the border.23

The Tributary System originated during the Zhou Dynasty and brought into its completion during the Ming Dynasty and the Qing Dynasty. Its long history itself has proved its smooth functioning in China. It is recorded in the Collected Statutes of Great Ming Empire that there were 123 vassal states presenting tributes to the Ming Empire.24 According to the Collected

20) See Immanuel C. Y. Hsu, The Rise of Modern China, 2nd ed., New York 1975, p. 184. 21) See Wang Tieya, International Law in China: Historical and Contemporary Perspectives, Recueil des Cours, 1990, II, p. 222. 22) See J. K. Fairbank and S. Y. Teng, On the Ching Tributary System, Harvard Journal of Asiatic Studies, Vol.6, No.2, 1941, p. 141. 23) See Chen Tiqiang, China’s Administration of Foreign Affairs, Chongqing 1943, Chapter 1. 24) See Li Yumin, Study on the Modern Treaty Regime, Hunan Normal University Press 1995, p. 3.

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Statutes of Great Qing Empire, the states, including Korea, Luichiu, Annam, Siam, Sulu, Lao, Burma and Holland, sent tributary commissions to China regularly in the Qing Dynasty.25

The success of the Tributary System depended on two reasons. On one hand, the System was not based on force, although forces may be used on rare occasions (Emperor Yang in the Sui Dynasty and Emperor Taizong in the Tang Dynasty went on an expedition against Korea, and Emperor Chengzu in the Ming Dynasty occupied Vietnam). The Celestial Empire of China disdained to intervene in the internal affairs of neighboring states, unless a usurpation of the throne or a coup or other behavior that was contrary to customary rules was staged (the same reason as modern democratic states’ non-recognition of a coup government that overthrew the previous demo- cratic government). Truly stated by Zeng Jize: “The relationship between China and its dependent states is totally different from that between the West and its dependent states.”26 It is not surprising that the neighboring states respected China, took all efforts to learn from China, and were proud of adaption to Chinese culture.

On the other hand, the System was useful to adjust relations and co- ordinate the complicated interests between China, a central state, and its neighboring tributary states.27 Although the latter, small and weak, were in a subordinate position, they still would accept this type of relationship because they received enough political, economical and cultural benefits. King Ruanfushi of Vietnam said in his official letter to the Ministry of Rites of the Qing Government in 1819: “Small countries are grateful to China’s conferrence of their titles and would like to be China’s fence; China is kind and generous to other states and sticks to those ancient codes and records.”28

25) See J. K. Fairbank (ed.), The Chinese World Order: Traditional China’s Foreign Relations, Cambridge 1968, p. 11. 26) See Zeng Jize, Zeng Huimin gong (jiegang) yi ji (A Collection of Zeng Jize’s Works), Yuelu Books 1983, p. 208. 27) See Wang Tieya, International Law in China: Historical and Contemporary Perspectives, Recueil des Cours, 1990, II, p. 224. 28) He Xinhua, The View of T’ien Hisn in Ancient China, Southeast Asian Studies, No. 1, 2006, p. 54.

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It should be evident that Confucian world order was a hierarchy,29 in which the interdependent relationship between China and its neighbor- ing states was asymmetrical. The Celestial Empire of China, in the core of the system, was less dependent on these tributary states than they were dependent on China. It was because of the asymmetry that China possessed a dominating power over the tributary states. However, this hierarchy was different from others, given the fact that it was not a relationship between the conqueror and the conquered, or a relationship between a sovereign state and its colony. Instead, the relationship was built on the basis of the superiority of Chinese culture and morality, which was elevated into cul- tural imperialism in order to expand Chinese culture instead of expanding its territory. In another words, the ideal way to build the Confucian world order was to influence the world by means of Chinese virtues. One core of Confucianism was to achieve peaceful evolution by means of culture, way of living and sense of values.

It has been a political ideal since ancient Qin Dynasty that culture has been used to eliminate borders. Chinese Emperor and his empire relied on much more assimilating neighboring states than conquering by force. The acceptance of China’s assimilation does not mean Chinese troop or Chinese governor in the country, it would be enough if only Chinese calendar would be officially issued and followed in the country. The principles of morality and justice be- tween China and its neighboring states have been persistent with the spirit in the Spring and Autumn Period (770 B.C. – 476 B. C.). Although the System has developed more and more complicated, it has never changed in the sense that the Ministry of Rites (Li Bu) has always been in charge. Although it is not developed into the Ministry of Foreign Affairs, it is not degraded into the Ministry of Colonial Affairs either.30

29) See J. K. Fairbank (ed.), The Chinese World Order: Traditional China’s Foreign Relations, Cambridge 1968, p. 20. 30) See Wang Ermin, Study on the History of Contemporary Ideology in China, Huashi Press 1987, p. 210.

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II. The Collisions between Modern International Law and Confucianism

In the 17th century, modern international law started its journey of de- velopment in Europe. Meanwhile, the Qing Dynasty, in a period of great prosperity, still held fast to the tributary system, which was contrary to the new equal international relationship in Europe. In the mid-19th century, the Opium Wars broke out, and the Qing Empire’s defeat in consequence forced China to learn about modern international relations, and inter- national law, the new norms for the new international relations.31 From then on, the collision between modern international law and traditional Confucianism started.

A. World Order

Modern Western world order and China’s Confucian world order repre- sent different international relations. The latter is an unequal relationship, self-centered and regarding other states as dependent states, but it takes non-intervention with dependent states’ affairs, so it is a conservative and closed system. The former takes a form of equality, emphasizing sovereign equality, but it is an “expanding” system – unequal in its nature, the law of the jungle prevailed in the relationship with non-Christian states.

Therefore, when modern Western world order encounters China’s Con- fucian world order, they collide with each other. On one hand, capitalist states in the Western world would like to break the unequal relationship, instead of accepting the Confucian world order; on the other hand, the “expanding” nature of modern Western world order inevitably links with aggressive policies that are plotted to break China’s Confucian world order and bring it into the world order of Western states. In 1793, Lord Macart- ney’s visit, as the British official representative, was the first action toward China; however, his requirements were turned down by the Qing’s Emperor, Qianlong, because these requirements were “incompatible with the Qing Dynasty’s system”.32

Macartney’s visit signaled the incoming collision, but the Qing Empire, ignorant of the development of the world, still adhered to the all-powerful

31) See Yang Zewei, Study on the History of International Law, 2nd ed., Higher Education Press 2011, p. 336. 32) Zhen Tianting (ed.), Materials about the History of Ming Dynasty and Qing Dynasty, Vol.2, Tianjin Renmin Press 1980, p. 376.

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Confucian world order and traditional view of China’s Celestial Empire, instead of adapting to the changed world. It is then not surprising that unprepared China would soon face a tragedy.

B. International Relations

According to traditional Confucianism, the kowtows hold a position of very great importance, meaning respect in family and social relations, and was the most grand ceremony to the emperor. In the eyes of Chinese, this etiquette is necessary for the tributary mission to show respect and good faith to the emperor.33 Moreover, the etiquette shows the supremacy of the emperor and the superiority of the “Central Empire” of China, so it is more than a ritualization, but a real part of China’s world order. When the Western missions to China were required to perform the Kowtows, they refused on the ground that the Kowtows meant unequal state relations, which had become a serious problem to Western states, and a barrier for China to develop international relations.34

It is worth mentioning that on the way to Beijing, Macartney had been treated as “British tributary mission”, instead of diplomatic envoy from an equal state by the official of the Qing Dynasty. Thus, “China’s relationship with western countries had long been built on the fictitious tributary system; the only way to conduct trade with China was to conduct tributary trade based on the Confucian world order”.35

In summary, before the Opium Wars, the relationship between the Qing Empire and foreign states was unequal. The relationship with Western states was only a trade relationship strictly limited within the tributary system. It should be noted that although this shows the Qing Empire’s self-arrogance, it was built on the basis that no state’s sovereignty was injured. In some sense, the relationship between the Qing Empire and the vassal states is more likely a political alliance, a mutually supportive relationship. This non-intervention relationship had been exemplified in the Han Dynasty’s

33) See Gerrit W. Gong, The Standard of “Civilization ” in International Society, Oxford 1984, p. 132. 34) See A. B. Morse, The International Relations of the Chinese Empire, Vol.1, London 1910, pp. 54–55. 35) Seizaburo Shinobu, Japanese Political History, Vol.1, translated by zhou Qiqian, Shanghai Translation Press 1982, p. 89.

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policy to Xiongnu,36 an ancient nationality in China, and the Qing Dynasty’s policy to its “dependent states”, which were conferred titles by the Qing Emperor, but remained completely independent. To the Western states conducting trade in China, although the Qing government still treated them with a sense of superiority, instead of equality, the Qing government never imposed its will on these states.

C. Foreign Trade

Because of its vigilance and precaution against “barbarians”, as well as fears that the relationship with foreign states would endanger the Empire, the Qing adopted a closed-door policy, which strictly limited trade with foreign states. The Canton System limited the ports in which European traders could do business in China. It also forbade any direct trading between Eu- ropean merchants and Chinese civilians. Instead, the Europeans, generally employees of major trading companies, had to trade with an association of Chinese merchants known as the Cohong. The European presence was restricted to the Thirteen Factories on the harbor of Canton (Guangzhou). In 1684, the Emperor Kangxi of the Qing Dynasty allowed foreigners to trade with China in four cities, including Guangzhou. In 1759, Emperor Qianlong limited westerners to the port of Canton (Guangzhou), and no other area, with strict limitations. This was referred to as “the Canton System”,37 mainly including the Thirteen Factories and the guarantee system, under which foreign traders were only allowed to do business with these designated Hong-merchants who guaranteed and supervised foreign traders, but forbidden to directly deal with the Qing government. This manage- ment system of trading, under which the Hong-merchants supervised by the Qing government were supervising foreign traders, reflected the Qing Empire’s superiority over westerners, its contempt of westerners and in general Confucian view of the world order.

After the Industrial Revolution, in the 1830s–1840s the capitalist world, led by Great Britain, was eager to expand. British merchants and industrial

36) Documents of Han Dynasty, Vol. 94. 37) Michael Greenberg, British Trade and the Opening of China 1800–1842, translated by Kangcheng, Business Book Press 1961, p. 38.

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capitalists insisted that “the Canton System must be changed”,38 and “the business system under restriction is unreasonable”, consequently the British government must “immediately intervene”, “to liberate trades with China from the present shackles of the Canton System”, and place British-China trade on “a secure, favorable, decent, and constant basis”.39 That is to say, even before the Qing Empire’s ban on opium-smoking and the opium trading, Britain had fermented military invasion.

D. The Treaty Regime

After the Opium Wars, the 1842 Treaty of Nanjing between Britain and China initiated a great number of unequal treaties, which broke the Con- fucian world order and produced a new system in international relations – the Unequal Treaty Regime. The Unequal Treaty Regime, contrary to the normal principles of international intercourse, was an embodiment of encroachment on China’s sovereignty by Western powers. These unequal treaties, signed under coercion of armed forces, gave Western powers uni- lateral privileges in a variety of areas, such as the system of extraterritoriality, the trade ports, the leased territories, conventional duty, foreign customs commissioners, most-favored-nation treatment, navigation rights on coastal and inland waters, religion, education, sphere of influence, foreign troops stations, legation quarters, investment in railways, mines and industry, the opium trade, labor trade, free recruitment, establishment of radio stations and banks, and so on. These privileges, as the main content of the Unequal Treaties Regime, amounted in essence to quasi-sovereign power over China, exercised by Western countries in order to plunder China.

The Unequal Treaty Regime signified a fundamental change of rela- tionship between China and foreign countries. The world order in which “China was in a commanding position about international relations”40 had been broken by Western powers with the Unequal Treaty Regime and

38) Michael Greenberg, British Trade and the Opening of China 1800–1842, translated by Kangcheng, Business Book Press 1961, p. 179. 39) Michael Greenberg, British Trade and the Opening of China 1800–1842, translated by Kangcheng, Business Book Press 1961, p. 67. 40) See A. B. Morse, The International Relations of the Chinese Empire, Vol.1, London 1910, p. 696.

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replaced by a new world order.41 To Western powers, these treaties “marked a new era of their policies on China and the bankruptcy of China’s close- door policy”.42 Just as A. B. Morse, an American scholar, said, “Before 1839, it was China who set up conditions for western states to follow in order to keep their relations; but, after 1860, it was western powers that imposed conditions of international intercourse over China against its will.” 43

III. The Integration of Modern International Law and Confucianism

In the mid-19th century, threatened by forces of Western powers, the Qing government had no choice but to come to compromise with Western powers. Consequently, the Confucian world order based on the Celestial Empire of China collapsed and Chinese officials and scholars began to learn, accept and apply modern international law.

A. Introduction of Modern International Law into China

In 1864, William Alexander Parson Martin, an American missionary, trans- lated Henry Wheaton’s Elements of International Law into Chinese, titled Wanguo Gongfa (Public Law of All Nations), which was the first book on international law in Chinese, and the first formal and systematic introduc- tion of international law in China.44 His purpose of translating this book was to instruct the Chinese to observe the norms recognized by Western states, but as a matter of fact he became the first person who gave a com- prehensive introduction of international norms generally practiced among Western states. It was a progressive step to accept a theory of international

41) For example, the 1860 treaties of Tianjin and Beijing after the Second Opium War not only forced the Qing to agree foreign ministers to stay in Beijing, and forbade the Qing government to use the character of “yi” to refer to foreign states, but also required the Qing to inform all levels of governments. See Wang Tieya: the Comprehensive Collection of Old Treaties, Agreements, Regulations, etc., between China and Foreign Countries, Vol.1, Sanlian Book Press 1957, p. 146. 42) Philip Joseph, A Study in Political and Economic Relations with China, translated by Hubin, Business Book Press 1959, p. 3. 43) A. B. Morse, The International Relations of the Chinese Empire, Vol.1, London 1910, p. 337. 44) See Yang Zewei, Study on the History of International Law, 2nd ed., Higher Education Press 2011, p. 338.

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relations, which is contrary to the traditional tributary system, although China and the West have different purposes.

i) The Qing’s Views on International Law

In general, officials and scholars in the Qing Dynasty could be divided into two schools on international law.

One school included members such as Zheng Guanying, Xue Fucheng, Zhang Zhidong and Ma Jianzhong, who had no confidence in international law, holding that although international law could be helpful to some extent, the key still lie in China’s power and prosperity, with which China could enjoy benefits, otherwise China could not rely on international law at all.45

The other school, headed by Duan Fang, Li Hongzhang, Li Jia and Zeng Jize, held that international law was perfect and powerful, and could be relied on to keep national security and world peace. Li Hongzhang, who had long been in charge of foreign affairs, military forces, and economy, wrote in the preface to a new edition of Public Law of all Nations edited by William Alexander Parson Martin: “Public law is a law for international community, if it’s abided by, it can ensure the world peace; otherwise it will cause collisions and wars.” He held that Mr. Martin in this book “is fair and equitable … that he would like to take the book as a standard when dealing with foreign affairs.”

It should be noted that almost all open-minded scholars recognized the importance of international law.46 Many of them insisted that international law might be used to argue against western powers, but should not have a blind faith. Cao Tingjie not only explained Wanguo Gongfa (Public Law of All Nations) article by article and sentence by sentence, and composed Annotation of Wanguo Gongfa, but also submitted a written statement to the emperor suggesting international law be used to prevent wars and invasions.47

45) See Yang Zewei, Study on the History of International Law, 2nd ed., Higher Education Press 2011, pp. 346–347. 46) See Tang Caichang, Collected Works of Tang Caichang, China Book Press 1980, pp. 44- 45. 47) Cong Peiyuan and Zhao Mingqi (eds.), Collected Works of Cao Tingjie, Vol.2, China Book Press 1985, pp. 410–411.

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ii) The Qing Government’s Application of International Law

Before the Opium Wars, Lin Zexu, a patriotic governor, tried to apply international law, especially international law on wars and aliens, in order to safeguard national independence and dignity. Lin took reasonable meas- ures based on international law to ban opium in China: firstly, he declared opium illicit; then he wrote to the British Queen to stop the opium trade; and at last, he took action to ban opium in Guangzhou.

William Alexander Parson Martin’s Wanguo Gongfa (Public Law of All Nations) was published in 300 copies, which were distributed to important coastal ports by the Tsungli Yamen (Office of Foreign Affairs) to argue against foreign states. Later on, the Qing government increasingly applied international law in foreign affairs, which seemed to help to some extent.

In the spring of 1864, Rehfues, a Prussian minister, took a naval vessel to China. He seized three Danish merchant ships as his prize. The Qing Government protested, based on these merchant ships were in China’s in- ternal waters under China’s jurisdiction.48 The Qing government’s protest, based on the view that international law and the threat to deny the Prussian minister, forced Prussia to release the Danish ships and make a compensa- tion of 1500 Yuan to the three ships.49

Another example is the China-Peru Treaty Incident. In 1874, when Peru sent an envoy to China to sign a commercial treaty, the Qing Government asked Peru to improve Chinese labor’s treatment and signed the China – Peru Convention to ensure a better treatment of Chinese labor in Peru. Besides, China – Peru Commercial Treaty included some clauses of mutual most-favored-nation treatment.

During the Sino-Japanese War in 1894, China’s declaration of war con- demned Japan’s “invasion of China had broken treaties and international law”.50 In 1899 and 1907, China sent representatives to the two Hague Peace Conferences,51 and signed the relative conventions and declarations. The

48) Beginning and End of the Management of Barbarian Affairs, Tongzhi Period, Vol. 26, p. 30. 49) See Jiang Tingbo, On Introduction of Public International Law in China, Qinghua Political Journal, 1932, pp. 61–64. 50) Liangxi (ed.), International Law, Wuhan University Press 2000, p. 36. 51) In 1899, China was represented by Yang Ru, China’s minister plenipotentiary in St. Petersburg; in 1907, China was represented by Lu Zhengxiang, ambassador plenipotentiary and extraordinary.

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above mentioned examples indicate that the Qing Government had applied international law to safeguard national interests.

B. The Unequal Treaty Regime

China was brought into the Capitalist world order by the Unequal Treaty Regime.52 The Unequal Treaty Regime originated in the 1840 Opium War, and came into being after the 1860 Opium War; after the 1895 Sino-Japanese War, it went on a groundbreaking development; the Final Protocol of 1901 signified its full development.53 The development of the Unequal Treaty Regime goes along with the collapse of Confucian world order and the invasion of Western powers.

The Unequal Treaty Regime, a child of a specific period of history, was in its nature a privilege of “quasi-sovereignty” exercised by Western powers over China. As J. K. Fairbank wrote, “unequal treaties made these privileges into a regime”.54 According to the treaty law, these treaties had become binding on China. That is why, although these treaties were against the Celestial Empire’s system, the Qing government had no choice but to regard the treaties as domestic law. Yi Xin, the head of the newly formed Tsungli Yamen, insisted “as long as we signed these treaties, we must abide by it”.55

In a word, the foreign relations in the Qing Dynasty was affected by these unequal treaties imposed by Western powers. Western powers which brought modern international law to China, however, only applied it among West- ern countries, not with China, or only applied international norms which were useful for their acts of aggression and robbing. It was the sanctity of unequal treaties that western powers stressed. Just as Prof. Cheng Tiqiang pointed out: “Western powers suppressed China first with force, then with

52) See Li Yumin, Study on the Modern Treaty Regime, Hunan Normal University Press 1995, p. 6. 53) See Li Yumin, Study on the Modern Treaty Regime, Hunan Normal University Press 1995, p. 11. 54) J. K. Fairbank (ed.), Cambridge History of China’s Qing Dynasty, Vol. 1, China Social Science Press 1983, p. 238. 55) Beginning and End of the Management of Barbarian Affairs, Tongzhi Period, Vol. 50, p. 50.

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unequal treaties, which governed all relations with China, leaving no space for the application of international law at all.” 56

Mr. Xue Fucheng enunciated that in the intercourse with Western states China could only act according to treaties, not international law. In an open letter, Guo Songtao explained that China had the right to refuse Western states’ illegal demands, but China must respect treaties. So did Ding Richang,57 a senior official in the Qing Dynasty.

These attitudes of Qing’s diplomats reflected the Qing government’s attitudes that the stress on the holiness of these unequal treaties was the common interest of China and western powers. Therefore, unequal treaties were basic regulations governing China’s relationship with foreign countries.

C. The Tsungli Yamen

Before the Opium Wars, all affairs with foreign countries, envoys and officials were in the charge of the imperial commissioners, generally the governor of Guangdong and Guangxi provinces. This caused a lot of trouble because there were no specific rules for him to follow. In 1861, the Qing established the Tsungli Yamen (Office of Foreign Affairs), which was the first diplomatic department for the Qing government and for China as well.

The Tsungli Yamen was established in conformity to the historical trend of the times. Western powers such as Britain, France and America, dis- liked dealing with the governor of Guangdong province, which they held unequal, and preferred direct contact with the central government. To the Qing government, the emperor and the central government did not know the details from the reports, false or contrary to the facts sometimes, from governors or imperial commissioners; meanwhile, the Emperor’s instruction might be delayed or ignored by officials. So, foreign ministers and diplomats repeatedly asked for intercourse directly with the emperor and the central government. The Tsungli Yamen was welcomed by foreign states, which British embassy exclaimed that they “had been working for it for decades”,58

56) Wang Tieya, International Law in China: Historical and Contemporary Perspectives, Recueil des Cours, 1990, II, p. 258. 57) See Wang Tieya, An Introduction of International Law, Peking University Press 1998, p. 397. 58) Yang Gongsu, Foreign History of Qing Dynasty, Peking University Press 1991, p. 116.

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and some Western states even said that this was “the best way for all states to keep a friendly relationship in China”.59

The Tsungli Yamen made it possible for foreign diplomats to directly make contact with the central government. However, there were still debates over how to present before the emperor of the Qing. In 1873, when Emperor Tongzhi took over the reins of the empire upon coming of age, foreign diplomats asked to make a ceremonial call and present their credentials to the emperor, with the etiquette of bowing three times to the Emperor, which was refused by the Qing. Later on, rules were set up for etiquette of receiving foreign envoys, the emperor could sit or stand, and foreign envoys should take the etiquette of bowing five times. In 1890 and 1901, disputes over the etiquette, venue and rite arose again.60 Western states believed that whether the emperor of China received foreign envoys and credentials with specific etiquette was not simply a protocol, but concerned with a state’s sovereignty and dignity according to modern international law. Similarly, the feudal dynasties, especially the Qing Empire, regarded this as the foun- dation of its foreign relations.

In 1901, the Qing Empire was forced to reconstruct the Tsungli Yamen into the Ministry of Foreign Affairs, because it “was overstaffed but unable to fulfill its responsibilities”.61 From then on, the Qing’s diplomacy began to develop in accordance with international practices, and at the same time, the Qing began to set up and train professional diplomats.62

IV. Conclusion

The Confucian view of the Celestial Empire of China and the Tributary Sys- tem lasted to the end of the 19th century. It was in the same period of history that modern international law was introduced into China and underwent ups and downs in China. Therefore, modern international law inevitably collided as well as integrated with Chinese traditional Confucianism. The

59) History Department of Qinghua University (ed.), Addendum of Beginning and End of the Management of Barbarian Affairs, Xianfeng Period, Vol. 4, p. 680. 60) See Yang Gongsu, Foreign History of Qing Dynasty, Peking University Press 1991, p. 117. 61) History Institute of Tianjin Social Science Academy (ed.), Report on U. S. Special Envoy Luan Keyi to China, pp. 5–6. 62) See Jiang Tingbo, Materials Collection on Modern Foreign History in China, Vol. 1, Busi- ness Book Press 1932, pp. 323–324.

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Qing government had been brought into a wider international community and international legal system by Western powers, but as a matter of fact, modern international law played no concrete role in the Qing’s foreign rela- tions. Instead the unequal treaty regime played a main role. At that time, international law, norms and regulations were believed to be only applied among Western states, those “civilized” or “Christian” states, not China. The only law applied to China in its foreign relations was the Unequal Treaty Regime.

In conclusion, the collision and integration of Western modern interna- tional law and traditional Confucianism in the 19th century are characterized by the following traits: 1) The collision ended with China’s compromise and retreat. To China,

modern international law had been regarded to be alien and contrary to its “system”. Even worse, it would break the Confucian view of the Celestial Empire and the tributary system. Those who proposed to adopt international law were denounced as “sinners against the Confu- cian heritage”.63 However, when modern international law was forced into China, the Qing government tended to abide by treaties, and proposed a diplomatic policy emphasizing modern international law. There were a number of high officials in position executing this policy. For example, Yi Xin proposed to deal with foreign states with good faith, and Zeng Guofan was strongly against immoral international relationships and insisted on abiding strictly to treaties.64

2) The integration of modern international law and traditional Con- fucianism was happening under the coercion of Western forces. As mentioned above, modern international law, norms and regulations did not apply to the Qing Empire, and the only law applied to China in its foreign relations was the Unequal Treaty Regime. In around 60 years, China had been forced into five wars: i) the First Opium War of 1840–1842; ii) the Second Opium War of 1858–1860; iii) the Sino- French War of 1883–1885; iv) the Sino-Japanese War of 1894–1895;

63) See Jerome Cohen, China’s Attitude Towards International Law – and Our Own, in Jerome Cohen, Contemporary Chinese Law, Cambridge 1970, p. 283. 64) See Articles and Letters of Zeng Guofan, Vol. 30, p. 49.

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and v) the War of Eight Powers against China of 1900–1901.65 Then, China was forced to sign humiliating unequal treaties after each war: i) the Treaty of Nanjing after the First Opium War of 1840–1842; ii) the treaties of Tienisin and Beijing after the Second Opium War of 1858–1860; iii) the Articles on Annam after the Sino-French War of 1883–1885; iv) the Treaty of Shimonoseki after the Sino-Japanese War of 1894–1895; and v) the Final Protocol after the War of Eight Powers a against China of 1900–1901. These unequal treaties constituted the framework of the Unequal Treaty Regime in China.

3) The collision and integration of modern international law and Confu- cianism as a matter of fact were conducive to China’s modernization. If we regard the Opium Wars as historical incidents that broke the Qing’s closed-door policy, Wanguo Gongfa (Public Law of All Nations) can be regarded as a theory that broke the Qing’s benighted view of the Celestial Empire. Dong Xun, a minister of the Tsungli Yamen, in the Preface to Wanguo Gongfa, acknowledged that “Nowadays, there are many nations outside China. If there is no law to regulate them, how are nations possible?”66 Zhang Sigui also said, the key to the richness and powerfulness of Britain, France, Russia and America was that “devotion to production, agriculture, commerce and industry makes a country rich, and improvement of weapons and troops makes a country powerful”.67 This eventually led to the Self-Strengthening Movement (1861–1895), an institutional reform during the late Qing Dynasty, initiated by some ruling elites to adopt Western technol- ogy, which in turn contributed to speed up the pace of China’s modernization.

65) See Wang Tieya, International Law in China: Historical and Contemporary Perspectives, Recueil des Cours, 1990, II, p. 251. 66) Dong Xun’s Preface (in Chinese), in W. A. P. Martin, Public Law of All Nations, Vol.1, Beijing 1864, p. 1. 67) Zhang Sigui’s Preface (in Chinese), in W. A. P. Martin, Public Law of All Nations, Vol.1, Beijing 1864, p. 4.

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