Jump to Content Jump to Main Navigation
International Law, Regional Developments: East Asia
Max Planck Encyclopedia of Public International Law [MPEPIL]

International Law, Regional Developments: East Asia

Shotaro Hamamoto

Subject(s):
Ancient Times to 1648 — Since World War II — Colonization / Decolonization

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A. Definition of the Scope of the Present Entry

There is apparently no single correct definition of ‘East Asia’. It is generally considered to be composed at least of today’s China, North and South Korea, and Japan and the present entry follows this general understanding. However, it refers, when necessary, also to Vietnam, which historians tend to include in East Asia for its tight relationship with successive Chinese dynasties, as well as to Mongolia, which played too important a role to be entirely ignored when one considers the history of the law applied in inter-State relations in the region surrounding China. Historians generally agree that the framework of ‘East Asia’ is broadly valid to understand the historical developments of Korea and Japan as well as the relationship between China, Korea, and Japan. They are, however, sceptical about its usefulness for the purpose of analysing the historical developments of China because China’s relationship with its northern and western neighbours cannot be explained by the logic that applied in ‘East Asia’. With this caveat in mind, the present entry deals principally with the historical developments between China, Korea, and Japan.

B. The ‘ancien régime’ of East Asian Inter-State Relations: Rigid Ideology and Amorphous Practice

1. Political Settings

Following the period of mythical kingdoms reigned over by god-like emperors and the centuries of political division, Qin established itself as the first dynasty that came to govern a large part of China in the third century BC. Qin (221 BC–206 BC) laid the foundations of the legal system of China, whose history would be coloured by the repeated alternation of dynasties.

Chinese official history records (edited by later dynasties) and archaeological evidence tell us that there existed a certain ‘diplomatic’ relationship between Han (China, 202 BC–8 AD, 25 AD–220 AD) and several ‘States’ of Wa (Japan) in the first century AD: The States of Wa then paid tribute to Han. Among around 30 small States that maintained relations with the Han court, Yamatai achieved hegemony and its shaman queen Himiko was invested as the queen of the entire Wa by the emperor Ming of Wei (China, 220–265) in 239.

In the Korean peninsula, ‘the three Korean Kingdoms’, Koguryo (North), Paekche (West), and Silla (East), appeared in the third to fourth centuries. All of them offered tribute to successive Chinese courts and their kings were recognized as such by Chinese emperors. Following a long conflict among them involving Sui (China, 581–618), T’ang (China, 618–907) and Wa, Paekche and Koguryo were conquered by the allied force of T’ang and Silla respectively in 660 and 668. Silla then succeeded in driving T’ang from their northern Korean stronghold and Korea’s first unified kingdom was thereby established in 676. Nevertheless, Silla (until 935) paid tribute to T’ang.

Although each of the three ‘States’—China, Japan, and Korea—would respectively be divided and reunited several times in the course of history, the basic form of East Asian States had thus been established already in the 5th century AD. East Asia, however, included other political entities, such as Parhae (or Bohai, a State that occupied the northern Korean peninsula and part of Manchuria, 698–926) or Ryukyu (today’s Okinawa).

2. Principles of the Tribute/Investiture ‘System’

(a) Ideological Background

Since ancient times, China had secured overwhelming supremacy in military, economic, and cultural matters in East Asia. This Chinese superiority generated a sense of Zhongguo or the ‘Middle Empire’, a sort of sinocentrism. Although the origin of the notion of Zhongguo is difficult to determine, it dates back at least to Zuo Zhuan, a Chinese narrative history book composed in the 4th century BC. China was placed at the centre of Tianxia, ‘all under heaven’ or the entire world. The Chinese emperor claimed to be Tianzi or ‘the son of heaven’, who was granted the power to reign over the entire world by an impersonal deity heaven.

The concept of li, or propriety, one of the basic tenets of Confucianism, formed the basis of the Chinese political system. Li in a narrow sense meant ritual ceremonies, or court formalities (‘li’ is thus often translated as ‘rituals’); in a broader sense, the whole corpus of governmental laws, regulations, social institutions, and proper human relationships (‘li’ is also translated as ‘rules of proper behaviour’). Li, as principles guiding the outward or external practice of every human being in a society, indicates the proper behaviours expected of individuals based on their roles and placement in the society. The Tianzi was placed at the highest position and everyone was supposed to bow to him.

The political expression of this sinocentrism based on Confucianism in inter-State relations was the tribute and investiture. Attracted by the grandeur of Tianzi, rulers of foreign ‘peripheral’ States composed of ‘barbarians’, naturally inferior to China, sent embassies to the Chinese court to seek an audience with the Tianzi and to offer him tribute goods in the form of local products (chao-kung or tribute). The Tianzi, or the Chinese Emperor, would in return present them with gifts and invest them with the title of king, who would thereby be entrusted with the power to rule their States (ts’e-feng or investiture). The practice of tribute/investiture dates back at least to the era of Western Han (202–8 BC), when the king of Nanyue (a kingdom consisting of parts of today’s Guandong, Yunnan, and northern Vietnam) was invested as such by the emperor of Western Han.

(b) Relationship between the Middle Empire and a Tributary State

According to this conception of world order, there could be no inter-State relations based on an equal footing between the Middle Empire and a tributary State. The hierarchical structure is the core element of tribute/investiture relations: As late as 1682, Qing (China, 1636–1911) imposed fines upon Chosŏn (Korea, 1392–1897) for the reason that the official letter addressed by the Chosŏn king to the Qing emperor was not in conformity with the formalities; the former then paid the fines, tendering his highest gratitude to the latter ‘for imposing such a lenient sanction’.

10 There could also be no ‘foreign’ relations, at least for China. Kings of the tributary States were considered to be subjects of the Chinese emperor and often granted an office in the Chinese bureaucratic system. China thus did not have a ministry of foreign affairs until the 20th century. It was the Li Bu, or the ministry of li (propriety, rituals) that took care of relations with other States. The Li Bu was in charge of court ceremonies, keju (imperial examinations), and academic (ideological) affairs. ‘Foreign relations’ thus constituted part of domestic matters, or more precisely, there was no notion of ‘foreign’ relations in the Chinese world order.

3. Extreme Flexibility of the Tribute/Investiture Relations

11 Kang Youwei (1858–1927), a Qing scholar and political reformer, is said to be the first to have conceptualized, at the end of the 19th century, the binary opposition between the Chinese world order based on Confucianism and the European world order based on international law. Since then, academic writings affirmed that there existed a ‘tribute/investiture system’ in this region until the introduction of European international law, starting from the Opium War in 1840. Recent studies argue, however, that it is overly simplistic to consider that inter-State relations in East Asia before the mid-19th century were carried out in the framework of a single ‘system’. First of all, the term ts’e-feng (investiture) was seldom used until the Song dynasty (960–1279), though it was frequently used during the Ming and Qing dynasties. Secondly, the tribute/investiture relationship was essentially bilateral and each relationship differed substantially. The variety of these bilateral relations is illustrated, for example, by the wide diversity of the titles granted by Chinese emperors to ‘kings’ of the tributary States. In addition, the practice of tribute/investiture was so flexible that it is hardly considered to constitute a coherent system.

(a) Fictitious Nature of Hierarchical Relationship

12 Tributary States were required to adopt the Chinese calendar (cheng-shuo or official calendar) and thus the Chinese era name system, according to which years were numbered in a Chinese emperor’s reign. Living in the single world at the top of which the emperor or Tianzi was placed, people in tributary States were supposed to share the time with the emperor. Even today, the whole People’s Republic of China constitutes a single time-zone: the western-most part of China has the same time as Beijing.

13 However, although they adopted the Chinese calendar and followed required formalities to recognize China’s theoretical superiority, tributary States were allowed to have almost complete autonomy in external as well as internal affairs unless they presented a threat to the Middle Empire. Tributary relations are thus clearly different from suzerain-vassal relations. The tributary/investiture practice was not one of economic exploitation either: when a tributary State offered a gift to the Chinese emperor, the latter in return bestowed more expensive imperial gifts on the mission to show his magnanimity. The tributary/investiture relationship was also that of mutual dependence. The dynasties of tributary States needed their investiture by the Chinese emperor to establish their legitimacy domestically as well as internationally. The successive Chinese emperors, for their part, needed tributes paid by surrounding States to establish their legitimacy as Tianzi.

14 Moreover, in certain cases, a State that did not intend to become a tributary State was unilaterally considered to be so by China. The T’ang dynasty thus treated Japanese embassies as tributary missions despite Japan’s refusal to be invested by T’ang with the title of the king of Japan (see para. 25 below). Later in the 19th century, the Netherlands, Portugal, Italy, and the United Kingdom were also classified as tributary States in Qing’s official documents. In fact, official letters addressed by these European missions to the Qing emperor did not follow the Chinese formalities in their original languages but the translated Chinese versions, actually submitted to the Qing court, were considerably modified by Chinese authorities so as to be in conformity with the tributary formalities.

(b) Economic Nature of Tribute: Tributary Trade

15 ‘Peripheral’ States paid tribute to the Chinese court for economic as well as political purposes. Besides the tribute gifts to be presented to the emperor, members of embassies or authorized merchants were allowed to bring merchandise to the capital to trade with local merchants. In addition, other merchants were allowed to accompany the embassy to do business at the port or on the border. Such transactions are generally called tributary trade.

16 Tributary States often continued to offer tribute in order to do business within the framework of the tributary trade rather than to maintain political legitimacy or to assure national security through investiture granted by China. The fact that the Ming dynasty started to impose customs upon it at the end of the 15th century indicates that the Middle Empire was well aware of the economic functions of tributary missions.

(c) Triple Faces of the Middle Empire: the Qing Dynasty

17 China under the Qing dynasty was something similar to a personal union. The emperor of Qing was first and foremost the head of the Manchus. He was at the same time the emperor of the Middle Empire as well as the Bogda Khan (Holy Emperor) of the Mongols (see para. 79 below). Qing thus had different faces for different neighbouring States. As regards Chosŏn and Ryukyu as well as several Southeast Asian States, it behaved as the Middle Empire according to the logic of the tribute/investiture practice. On the other hand, the two Sino-Russian treaties on trade and boundaries concluded at the turn of the 17th century (Treaty of Nerchinsk, 1689 [18 CTS 503]; Treaty of Kyakhta, 1727 [33 CTS 23]) were concluded between the heads of the two Mongol tribes, the Bogda Khan (the Qing Emperor) and the Tsagaan Khan (the ‘White Khan’, the virtual successor of the Golden Horde, ie the Russian Tsar).

(d) Double Tribute: Ryukyu

18 In the Ryukyu Islands, situated in the East China Sea between Taiwan and Japan, small kingdoms were gradually constituted in the 14th century. Three of them began to pay tribute to the Ming dynasty in the late 14th century. A united kingdom of Ryukyu was created in the early 15th century and it continued to pay tribute to Ming.

19 The kingdom of Ryukyu was conquered by the Shimazu of Satsuma, Japan, and made part of it on the instruction given by the Tokugawa Shogunate (Japan, 1603–1868) in 1609. However, the Tokugawa Shogunate, considering the good relations that Ryukyu had maintained with Qing to be useful, ordered the kingdom to continue to pay tribute to the Qing dynasty. The Shimazu and the Tokugawa Shogunate even tried to hide the conquest so that Ryukyu would be accepted by the Qing court, which, though perfectly aware of Japan’s predominant position in Ryukyu, continued to accept tributary embassies sent from the kingdom. Ryukyu’s double tribute lasted until Japan formally incorporated it in the late 19th century (see para. 59 below).

(e) Existence of Small ‘Middle Empires’: Relationship between ‘Peripheral’ States

20 If the relationship between China and peripheral States was hierarchical at least in theory, that between peripheral States was not necessarily considered as horizontal: peripheral States often pretended to be superior to others. The Kwanggaet’o Inscription, the earliest dated Korean inscription carved on a stele put up in 414 by a Koguryo king to commemorate his father king’s achievements, claims that the Koguryo king is superior to the Paekche or the Silla king. Japan required Silla and Parhae, in the 8th century, to follow formalities recognizing Japan’s superiority: Silla accepted to do so during a short period when it maintained a hostile relationship with the T’ang dynasty in China but soon refused as its relationship with the latter improved and diplomatic relations with Japan were then severed; Parhae accepted and embassies continued to be exchanged between Japan and Parhae for two centuries until the collapse of the latter.

21 Such a hierarchical conception of relations between peripheral States subsisted until the very end of the Chinese world order in the 19th century. Chosŏn embassies sent to the Tokugawa Shogunate had to follow the formalities and ceremonies indicating Japan’s superiority to Chosŏn, while Japanese embassies sent by the So family, which ruled the Tsushima islands located in the straits between Korea and Japan, were admitted in Chosŏn according to the formalities established on the basis of Chosŏn’s superiority to Japan.

22 These examples indicate that the peripheral States’ way of thinking was framed in accordance with the Chinese theory of the Middle Empire and each claimed to be the Zhongguo. The Chinese world order was thus profoundly hierarchical in theory if not in practice.

23 Nevertheless, there existed a great deal of flexibility in the hierarchy. The typical model, which was most faithful to the ideology of the Middle Empire, identified the head of a State claiming to be the Zhongguo as Tianzi and the head of the counterpart as his subject. However, in their relationship with Japan, neither Silla nor Parhae, while formally recognizing Japan’s superiority for political convenience, accepted Japan’s request to qualify themselves as subjects of Japan’s Emperor. Their attitude indicates that they also considered themselves to be Zhongguos or small ‘Middle Empires’.

(f) Relations with Non-tributary States

24 In contrast to Silla, Parhae, and successive Korean dynasties, Japan clearly distanced itself from this tribute/investiture practice. The queens/kings of Wa in the period of Yamatai, although invested by the Chinese emperor with certain titles, did not call themselves China’s subjects. It is only during a short period of the fifth century (438–478) that the kings of Wa called themselves China’s subjects when they asked the emperor of Liu Song (420–479, one of the four southern dynasties of the then-divided China) to invest them with certain offices in the Chinese bureaucracy. However, when Wa sent the next missions in 600 and 607, following the creation of Sui that had unified China after Nanbeichao (5th to 6th century)—a period when China was divided between northern and southern dynasties—Wa’s delegation told the Sui emperor that the Wa king/queen was placed on an equal footing with the Sui emperor. Wa thus declared that it would not follow the tribute/investiture practice and the Sui emperor did not grant the title of king to the Wa king/queen. Although Sui, ignoring Wa’s position, nevertheless continued to treat it as one of its tributary States, Wa did not accept being recognized as such. This attitude symbolizes the emerging Japanese sense of Zhongguo or nippocentrism.

25 Around the turn of the 8th century Wa named itself Nippon or Japan. It sent several missions to T’ang during the 8th century but its Tenno (Japan’s Emperor) refused to be invested by T’ang with the title of the king of Japan. Japan continued to regard itself as equal to China and stayed out of the tribute/investiture practice, except for a few Shoguns during the Ashikaga Shogunate (1378–1573) who solicited investiture with the title of the king of Japan from Ming (1368–1662), which did not allow foreign trade out of the framework of tributary trade.

26 The absence of the tribute/investiture relations did not prevent non-tributary States from trading with Chinese merchants. Already under the Song dynasty (960–1279), customs offices were established in various spots on the land frontier or in ports. Merchants from non-tributary States were also authorized to come and trade, except during the Ming dynasty. Tribute/investiture was required only when an official mission was sent from a State to the Chinese court during the Ming and Qing dynasties (see para. 14 above for T’ang’s flexible practice). With regard to foreign States or their merchants trading with Chinese merchants, there was no need of tribute/investiture since, theoretically, the Tianzi had nothing to do with such trade (though customs duties were levied by Chinese authorities).

27 After Qing abolished, in 1684, the sea ban introduced by Ming, Qing’s foreign trade rapidly expanded. European States as well as Japan and many Southeast Asian States were allowed to engage in trade in China without paying tribute to the Qing court. They were classified in Qing’s official documents as ‘trading States’ and not as ‘tributaries’, unless they sent official missions to the Qing court, as did some European States such as the Netherlands (see para. 14 above). Qing’s trade with more than a hundred non-tributary trading States was quantitatively far more important than that with fewer than ten tributary States.

4. The Law Applied in Inter-State Relations and/or ‘Transnational’ Disputes

(a) Diplomatic Relations

28 According to the tribute/investiture practice, a tributary State was supposed to send an embassy to offer tributes to China, at least when a new king assumed his position, in order to solicit investiture of the new king. China, for its part, sent a mission to a tributary State to communicate its investiture of the new king or to make a call of condolence on the death of the former king. Exchanges of envoys were thus frequent.

29 Along with the development of private trade starting from the 9th century, Chinese merchants travelling between China, Japan, and Korea often served as couriers, delivering official documents and letters from and to each State. While it is certain that the host State entertained embassies hospitably and rules on diplomatic ceremonies were developed reflecting the above-mentioned concept of li, historic records indicate that no notion of diplomatic privilege or immunity was known in East Asia. There was indeed no reason for China to be legally obliged to grant privilege or immunity to embassies coming from ‘barbarian’ inferior States. An envoy from Koryŏ (Korea, 918–1392) was arrested and imprisoned by Ming in 1380 because the tribute offered by the Koryŏ mission did not correspond to what had previously been promised. When, in 1510, it was revealed that the head of the embassy sent by the Ashikaga Shogunate to the Ming court was in fact a Chinese national named Song Suquing, the Ming government decided simply to send him back to Japan, despite the Ming law qualifying serving a foreign State as one of the most serious crimes. The decision was based, however, on the Ming emperor’s ‘compassion and dignity’.

(b) Treaties

30 Under the logic of the Middle Empire, an ‘agreement’ between China and a ‘barbarian’ State was not conceivable. Thus, China concluded no treaty with a State in East Asia. Apparently there were no treaties between Korea and Japan, probably because each considered itself superior to its counterpart. Although it is known that Chosŏn concluded several ‘agreements’ with Tsushima in the 15th to17th centuries to fix conditions of trade, they were rather Chosŏn’s unilateral acts imposed on Tsushima, which was no more than a trade agent in Korean eyes.

31 China, however, concluded treaties with States to which the logic of the tribute/investiture did not apply. Thus, the Song dynasty concluded treaties fixing the boundaries with Liao (also known as Khitan, a State that ruled part of Manchuria, Mongolia, and northern China, 907–1125) in 1004 and 1042. The Qing emperor as the Bogda Khan also concluded treaties on trade and boundaries with Russia (see para. 17 above).

(c) Territories and Boundaries

32 While a certain vague notion of territory existed, it seems that East Asian States did not consider it necessary to clearly fix all the boundaries. This is because governmental powers were exercised almost exclusively on the basis of personal jurisdiction, particularly as regards criminal matters. The Tianzi was supposed to govern by his virtue and benevolence and not by his military or economic power. People who were enlightened by the emperor’s virtue voluntarily assembled under him to enjoy the benefits of his virtue. Stubborn people who did not understand the emperor’s virtue were considered to be placed beyond the pale (huawai) but were not to be subjugated by force unless they presented a threat to the Middle Empire.

33 This applies even to Japan, for which it must have been easier to establish boundaries as it was an insular State surrounded by seas. Thus, official maps established by the Tokugawa Shogunate are not coherent as regards the status of Ezo (today’s Hokkaido, the northernmost main island of Japan and then occupied by Ainu, today recognized as an indigenous people) and Ryukyu. Such an ambiguous notion of territorial boundaries is one of the causes of existing territorial disputes between East Asian States, including the Dokdo/Takeshima Islands dispute (Dok Do/Takeshima Islands from a Korean Perspective; Takeshima/Dok Do Islands from a Japanese Perspective).

34 However, boundaries were drawn by agreement where the logic of the Middle Empire did not apply. In accordance with the 1004 treaty (see para. 31 above), Song and Liao delimited and actually demarcated the boundaries between them.

(d) Status of Foreigners

35 Under the law of T’ang, foreigners, although considered as barbarians, were capable of engaging in commerce or getting married to Chinese and entitled to institute litigations before Chinese courts against Chinese in civil or criminal matters. While Chinese law applied to a relationship between a foreigner and a Chinese or that between foreigners of different nationalities, disputes between foreigners of the same nationality were to be settled by the law of the State of nationality according to the principle of personal jurisdiction. A contemporary Arabian merchant’s travel account reports that disputes between Muslims in China were settled by a special tribunal composed of Muslim judges in conformity with the law of the parties to the dispute. This system of personal jurisdiction was basically maintained by successive dynasties down to Qing.

36 In Japan, which enacted legal codes called ritsuryo based on the T’ang legal system (lüling) in the 8th century, the conditions of foreigners were quite similar and stayed so even after the fading out of ritsuryo from the Japanese legal system. With the exception of Christians directly sanctioned under the ban on Christianity in the 16th century, foreign criminals were simply ordered to leave Japan, although stolen goods were restituted and illegally imported goods were confiscated.

37 During the period in which the right to commerce was advocated by Francisco de Vitoria, Francisco Suarez, and Hugo Grotius, East Asian States maintained complete control of external trade. Ming made a volte-face after centuries of trade promotion under the Song and Yuan (1271–1368) dynasties by imposing sea bans. Qing also imposed complete sea bans at the beginning of its dynasty (until 1684) and later strictly obliged foreign merchants to carry out commercial activities at designated customs points in addition to prohibiting European merchants’ trade in any places other than Guandong or Canton (1757–1842). The Tokugawa Shogunate prohibited the arrival of Spanish and Portuguese ships respectively in 1625 and in 1639, while placing private trade between Japanese on the one hand and Dutch and Chinese on the other hand under strict governmental control in Nagasaki.

38 Motivations for such sea bans varied according to States. For China, they were first and foremost measures to maintain internal security. Ming tried to oppress pirates (wako or Japanese brigands) and Chinese insurgents, both active on the Chinese coast. Qing maintained the sea ban until it succeeded in repressing insurgents based in Taiwan. The Tokugawa Shogunate intended to centralize the control over trade and to prevent the dissemination of Christianity (which was considered to spearhead the possible colonization of Japan by Spain and/or Portugal) and the haemorrhage of gold and silver. Koreans are considered to have had little knowledge of or interest in the world beyond Southeast Asia during this period.

(e) Protection of Nationals Abroad

39 Chinese nationals living abroad (engaged in commerce, for example) received no protection from their mother country. Considered as stupid enough to voluntarily lose the benefit of the emperor’s virtue, they were regarded worthless. Thus, when around 10,000 Chinese emigrants were massacred by the Dutch in Java in 1740, the Qing government took no protective action, considering that those emigrants had simply reaped what they had sown. It was not until the late 19th century that the first consular offices appeared along with the gradual introduction of European international law (see below).

(f) Law Applied to ‘Transnational’ Commercial Activities

40 It is not well known whether or how ‘transnational’ commercial activities were legally regulated. There seems, however, to have been a certain kind of lex mercatoria applied to trade between merchants in the period between the late 17th century and the early 19th century, in which ‘transnational’ trade rapidly grew in the region.

(g) Law of War

41 There was no codified law of war but a certain practice existed. Prisoners of war were frequently returned after the end of hostilities, for example, after Japan’s intervention in a war between Korean kings in the 7th century or after Japan’s invasion in the Korean Peninsula in the 16th century. Historical records also tell that messengers sent by Japanese military leaders to their Korean counterparts were protected by the Korean army during the latter war.

(h) Making Peace

42 Because treaties were not concluded between Korea and Japan (see para. 30 above), there is accordingly no record of peace treaties, though wars were of course not exceptional phenomena in this region. Often a kind of exchange of notes served as peace agreements. For example, after Japan’s invasion of the Korean Peninsula and its defeat against China (Ming) at the end of the 16th century, letters were exchanged between the Japanese Shogun and the Chosŏn king to re-establish peaceful relations between Japan and Chosŏn in 1606–07. The original letter of the Japanese Shogun did not recognize Japan’s responsibility for the war but was falsified by the So family of Tsushima in this respect so that the Chosŏn king could accept it.

C. Encounter with European International Law

1. Gradual Introduction of European International Law

43 Europeans had begun to arrive in East Asia in the 16th century: Portuguese from their bases in Goa and Malacca, Spaniards from Manila, and Dutch from Java. Treaties concluded between Qing and Russia in the 17th to 18th centuries have already been mentioned. But it is the arrival of the United Kingdom and the United States that had a profound impact on East Asia from the standpoint of the history of international law.

44 In 1793 the UK applied to the Qing emperor for an expansion of trade, but when the UK embassy refused to practice the traditional tributary presentation ritual of the kowtow (kneeling three times, each time bowing their head to the ground thrice) in front of the emperor, its mission failed. The UK finally chose to open the market by force. European States, having survived the bellicose 18th century and experienced the Napoleonic wars, had developed their arms industry and military technology well beyond the reach of East Asian States, which had known no major war since the beginning of the 18th century. The (first) Opium War that broke out in 1840 resulted in a British victory and the Treaty of Nanking, which was concluded between Qing and the UK in 1842 (93 CTS 465). The treaty opened four ports, including Shanghai in addition to Guandong, and recognized British possession of Hong Kong. Qing also concluded treaties including the most-favoured-nation clause with the US (97 CTS 105) and France (97 CTS 375) in 1844. The second Opium War (or the Arrow War, 1857–60) resulted in the Treaty of Tianjin (1858) (119 CTS 163) and the Convention of Peking (1860) (123 CTS 71), which explicitly provided that the British Queen is ‘the Sovereign of an independent nation on a footing of equality with that of China’ (Art. 3). The treaty also allowed European diplomats to reside in the Chinese capital: this meant that the Qing court was put in constant communication with European and American powers.

45 It is in this context that Vattel’s Le droit des gens and Wheaton’s Elements of International Law (6th edn 1855) were translated into Chinese. The former is the first work on international law (partly) translated into Chinese in 1839 apparently to cope with problems related to opium trade, but was not widely read due to the poor quality of translation and to its outdatedness. In contrast, the translation of Wheaton’s Elements carried out in 1864 by American missionary William Martin and members of the Tsungli Yamen (a subcommittee of the Chinese Grand Council dealing with foreign affairs) was a success. By this time, the Qing court understood that Europeans were insensible to reasoning based on Chinese political thinking but found that those ‘barbarians’ granted validity to arguments based on what they called international law.

46 A great change was also in progress in Japan. ‘Black ships’ led by Commodore Perry of the US Fleet appeared at the Bay of Edo (Tokyo) in 1853 (the US had acquired California in 1848 as a result of the Mexican-American war). He had a clear objective to open a crack in nippocentrism or a hierarchical view of international relations. Perry demanded:

to be treated on a footing of equality, thus destroying the presumed claim hitherto held forth by China and Japan, that all presents to the respective emperors have been tendered as tribute to superior powers (Message of the President of the United States, Transmitting a Report of the Secretary of the Navy, in Compliance with a Resolution of the Senate of December 6, 1854, Calling for Correspondence, &c, relative to the Naval Expedition to Japan [US Senate 33rd Congress, 2nd Session Ex Doc No 34] 1855, 55).
Perry succeeded in concluding a Treaty of Peace and Amity with the Tokugawa Shogunate on his second visit in 1854, the very first treaty that Japan concluded (111 CTS 377). Similar treaties were concluded with the UK (1854) (112 CTS 245), Russia (1855) (112 CTS 467), and the Netherlands (1855) (113 CTS 483). Treaties of amity and commerce were thereafter concluded with the US (119 CTS 253), the UK (119 CTS 401), France (120 CTS 7), Russia (119 CTS 337), and the Netherlands (119 CTS 313), all in 1858, and later with nine other European States.

47 These events made the Japanese understand the necessity to study what the Western powers called ‘international law’. The first book on international law that the Japanese looked at was the English translation by William Cobette of Georg von Martens’ Précis du droit des gens moderne de l’Europe fondé sur les traité et l’usage, presented by Minister Harris of the US in 1862. But it was Martin’s translation of Wheaton’s Elements imported from China in 1865 that made a huge impact. Another important work is the Oranda Vissering Shi Bankoku Koho (Vissering of Holland’s Universal Law of Nations), published in 1868 by Nishi Amane, who was sent by the Tokugawa Shogunate to study international law at Leiden University under Simon Vissering in 1863–66.

48 It is only natural that some people both in China and Japan first tried to comprehend international law in their intellectual framework, ie Confucianism. International law was considered to be a sort of natural law from this perspective. It was practical considerations, however, that eventually led to Chinese and Japanese officials studying international law. In 1864, Prussia seized, near the Chinese coast, merchant ships of Denmark, with which it was at war. When China lodged a protest against Prussia invoking international law prohibiting such acts in the territorial sea of a foreign State, Prussia released the ships and paid compensation. Chinese officers, who were able to consult relevant parts of Wheaton’s Elements that were then being translated at China’s Tsungli Yamen, understood the utility and efficacy of international law. Japan was also quick in making the most of international law to promote its national interests.

2. Co-existence of the Traditional Conception of Inter-State Relations and European International Law

49 The traditional conception of inter-State relations based on Confucianism did not disappear in a day with the introduction of European international law. It is true that Qing accepted international law because it seemed to them to be a useful instrument to control arbitral behaviour of Western powers. But the reason why Qing was able to accept international law was that it was not considered incompatible with traditional Chinese thinking. Treaties with European States were understood as a slight adjustment of Qing’s relations with non-tributary trading States, thereby in no way affecting the principles of the Middle Empire. The 1871 Sino-Japan Treaty of Amity (144 CTS 139), the very first treaty that Qing concluded with an East Asian State, was no exception at least from Qing’s perspective. First of all, it was a treaty concluded with another non-tributary trading State. It was also entitled tiao gui in Chinese and joki in Japanese, instead of tiao yue or joyaku, the terms usually used to signify a treaty (see paras 14 and 24–25 above on Japan’s ambivalent status in the Chinese conception of the world order). Moreover, Art. 6 of the ‘treaty’ provided that Chinese would be the diplomatic language between the parties, though Qing usually accepted the counterpart’s language as well as Chinese as the language to be used in its relations with Western powers. For Qing, the tributary and European conceptions of world order co-existed to a certain extent without serious difficulty.

50 Chosŏn had not yet accepted European international law in this period. The US, wishing to obtain from Chosŏn an apology and compensation for a US ship attacked and burnt by Koreans in 1866, asked the Qing court whether it should negotiate with Beijing or directly with Seoul in 1871. Despite Qing’s reply that, although Chosŏn was a dependency of Qing, it had the power to carry out its external as well as internal policies, Chosŏn refused to enter into negotiations, affirming that as a dependency, it did not have the power to deal with foreign States. It is true that the 1876 Chosŏn-Japan Treaty of Peace and Friendship (150 CTS 323), the first treaty concluded by Chosŏn and another tiao gui or joki, provided in its Art. 1 that this meant that Chosŏn was an independent State that enjoyed the same sovereign rights as did Japan. Nevertheless, for Chosŏn this meant that both States were independent and equal as tributaries to Qing. The same treaty was valid under European international law for Japan and so under the tribute/investiture conception of world order for Chosŏn. This ambivalent situation lasted until the conclusion of the Sino-Korean Treaty in 1899 (see para. 65 below).

51 It is interesting that even Japan, which assimilated into the European conception of world order based on international law in the swiftest manner, continued to maintain traditional relations with Chosŏn and Ryukyu until the 1870s. Although the post of gaikoku bugyo (commissioner for foreign affairs) was created in 1858, it took charge only of relations with American and European States. Relations with Chosŏn continued to be dealt with by Tsushima (see para. 21 above), those with Ryukyu by Satsuma (see para. 19 above). When Commodore Perry pressed the Tokugawa Shogunate to open Naha port in Ryukyu as well as several other ports in the main islands of Japan, the Shogunate refused, arguing that Ryukyu was too far away and not under the complete control of Japan. Perry then went to Ryukyu to negotiate a treaty (112 CTS 77) in 1854. Japan, being unable to clarify its position on the status of Ryukyu, decided not to intervene in the negotiation. Representatives of France and the Netherlands also signed treaties with Ryukyu in 1855 and 1859 respectively but neither of them was ratified as the French and Dutch governments were not certain about the status of Ryukyu. In 1872, the Japanese emperor invested the king of Ryukyu with the title of the lord of the Ryukyu Han (Han, or domain, was a fiefdom of a feudal lord) in accordance with the logic of the tribute/investiture practice, and it was not until 1875 that Japan required Ryukyu to cease to pay tribute to Qing. The Ryukyu Han existed until the incorporation of Ryukyu into Japan in 1879 (see para. 59 below). For approximately 20 years, the traditional world order based on the tribute/investiture practice and the European world order based on international law co-existed to the Japanese eyes.

3. ‘Unequal’ Treaties

52 Treaties concluded by China and Japan with Western powers during this period are often called unequal treaties (Treaties, Unequal). Consular jurisdiction was granted only to Western powers; the obligation of most-favoured-nation treatment was incumbent only upon China or Japan; China’s and Japan’s tariff regime was defined by the treaty and not by respective domestic law. China and Japan would have to devote enormous effort to have their Western partners accept the revision of these stipulations in later years.

53 It is to be noted, however, that these clauses were not imposed upon China or Japan. Japan, for example, concluded similar treaties with Hawaii in 1871 (141 CTS 447) and with Peru in 1873 (146 CTS 337). Consular jurisdiction was perfectly in harmony with their tradition of personal jurisdiction (see para. 32 above) and stipulated also in the 1871 Sino-Japan Treaty of Amity. If the 1876 Chosŏn-Japan Treaty stipulated unilateral consular jurisdiction in favour of Japan, the Chosŏn government saw no problem since no Koreans except diplomats were then expected to visit Japan. Chinese negotiators even thought that consular jurisdiction in favour of Europeans was indispensable because sacred Chinese law should not be applied to European barbarians. Consular jurisdiction did not cause practical problems because freedom of movement was not granted to foreigners. The freedom of movement of non-Japanese in Japan was first recognized by the 1894 Japan–UK treaty (Arts 1, 3, and 18), which abolished the UK consular jurisdiction (see para. 60 below). As for the unilateral most-favoured-nation clause, there was no problem for Japan, which saw no possibility of its nationals’ going abroad under the seclusion law that prohibited private persons’ travel overseas. The clause was favourably accepted by China, which considered that the grace of the emperor should be lent to all barbarians in an equal manner. The unilateral character of the treaty tariff regime, for its part, did not look problematic as China and Japan, which had no prospect of gaining profits from exports, lacked an interest in controlling the tariff regimes of their Western counterparts.

54 Seen from the point of view of Western powers, the situation was precisely the opposite. They were not ready to let their nationals be subject to the law of Asian States whose:

Civilisation has not yet reached that condition which is necessary to enable their government and their populations in every respect to understand and to carry out the command of the rule of International Law (L Oppenheim International Law: A Treatise [Longmans London 1905] 1:33).

Extraterritorial jurisdiction was smoothly introduced in China and Japan thanks to this strange combination of mutual disdain entertained by the two equally hierarchical perspectives, the one sino-(or nippo-)centric, the other Eurocentric.

55 It took some time for China and Japan to understand that these provisions would in fact cause a number of practical difficulties. For example, as increasing exchanges with foreign States led them to gradually allow free movement of foreigners in their lands, strict adherence to the principle of personal jurisdiction became impracticable. To introduce the principle of territorial jurisdiction, consular jurisdiction had to be abolished. The treaties concluded with Western powers began to be regarded as ‘unequal’ first in Japan towards the end of the 1860s and then in China a decade later. This awareness of inequality symbolizes a fundamental change of their mindset. China and Japan began to consider that relations between States must be based on the principle of equality.

D. Assimilation into the European Conception of World Order Based on International Law and Eclipse of the Tributary Relations

1. Japan’s Swift Assimilation into the European Conception of World Order Based on International Law

56 It is apparently Japan that made the most of international law in this period in East Asia. Japanese officials as well as academics quickly understood that Japan was in a position to make use of European international law to promote its national interests. It was, to Japanese eyes, an ideal weapon to demolish China’s hegemony in the region based on the tribute/investiture practice. Japan thus endeavoured to make itself look like a ‘modern’ State that would behave faithfully in accordance with European international law, and to give Western powers a clear impression that Qing remained a retrograde State clinging to the outmoded idea of the Middle Empire.

57 Japan thus swiftly concluded treaties with neighbouring States. In 1871, it concluded the above-mentioned Treaty of Amity with Qing, the first treaty concluded between East Asian States. Japan needed it to be formally placed on an equal footing with China, while the latter considered it possible to conclude a treaty, which it needed to control Japan’s potential military threat, without jeopardizing its traditional conception of sinocentric world order (see para. 49 above). In 1876, Japan secured the signature of a Treaty of Peace and Friendship with Chosŏn, stipulating the ‘independence’ of the latter (see para. 50 above).

58 Territories needed to be clearly fixed. In the north, the 1855 treaty with Russia already provided that the frontier between Japan and Russia would run between the islands of Iturup and Urup. It was followed by the Treaty of St Petersburg of 1875 (149 CTS 179), by which Japan ceded all of Sakhalin Island to Russia and in exchange acquired the entire arc of the Kuril Islands. Japan also officially incorporated small islands in the Pacific Ocean, the East China Sea, and the Sea of Japan. It was during this period, ie towards the end of the 19th century, that the term ‘ryodo’, apparently translated from ‘territoire’ in French, started to be used first in academia and then in official documents.

59 The status of the kingdom of Ryukyu, double tributary to China and Japan, was a difficult issue. Fifty-four Ryukyu sailors were murdered in 1871 and four Japanese sailors plundered in 1873, both by natives of Taiwan. When Japan demanded punishment of the murderers and compensation, the Qing government refused because these ‘Taiwanese wild aborigines’ were ‘beyond the pale’ (see para. 32 above). Japan claimed that Taiwan was thus terra nullius under international law and sent a military expedition to the island in 1874. Following Japan’s victory, Japan and Qing concluded an agreement according to which the latter paid the former compensation (148 CTS 223). Although the agreement did not explicitly mention the status of Ryukyu (the English translation published in CTS is misleading in this regard; see the authentic Chinese text in 6 Dai Nippon Gaiko Bunsho, Doc No 186), Japan considered it as Qing’s recognition of Japan’s rule over the kingdom. Ryukyu, already turned into Han in 1872 (see para. 51 above), was finally formally and clearly incorporated into Japan in 1879. When the US asked Japan about the status of a treaty that it had concluded with Ryukyu in 1854, Japan replied that as Ryukyu was an integral portion of the Japanese Empire, it was natural that the provisions of the treaty between the US and Ryukyu would be observed by Japan. However, Japan has not clarified its position on the legal status of the treaties concluded by Ryukyu up to today. While the treaties concluded by Ryukyu, including the unratified ones with France and the Netherlands, were later included in the Kyu Joyaku Isan, which is an official Compilation of Old Treaties published by the Japanese Ministry of Foreign Affairs in 1934, the Japanese Government stated in 2006–2007 that these ‘treaties’ had not been concluded by Japan, that Japan had not been party to them, and that the circumstances surrounding the then–‘Kingdom of Ryukyu’ were uncertain.

60 Japan largely tried to urge Western powers to accept the revision of ‘unequal’ treaties concluded in the 1850s. Japanese government leaders believed that the only solution was to push for further Europeanization of its legal and political systems so that the Western powers would have no excuse for treating Japan as semi-civilized. Japan succeeded in denouncing the provision on consular jurisdiction contained in the 1860 Japan-Portugal Treaty (122 CTS 305) in 1892 for the reason that Portugal had closed its consulate in Tokyo and had entrusted the exercise of consular jurisdiction to a Portuguese merchant, who was not a ‘consul de carrière’. In 1894, Japan also secured signature of the Treaty on Commerce and Navigation with the UK (180 CTS 257), the first ‘equal’ treaty for Japan. Its entry into force, however, was subject to Europeanized legal codes in Japan. The treaty with the UK as well as others that replaced old ‘unequal’ treaties finally entered into force in 1899, after the Civil Code, Commercial Code, and other codes modelled on the European (particularly German) legal system had entered into force.

61 During this period, Japan was involved in four arbitration cases. Two of them were settled by agreement but the tribunals rendered sentences in the other two cases: Maria Luz (Japan v Peru) ([29 May 1875] [1875] 149 CTS 261) and Japanese House Tax (1905). It is generally considered that the defeat in the latter case, related to taxation on foreigners’ houses, determined the negative attitude of Japan towards the judicial settlement of international disputes: the Japanese formed the impression that they were not yet skilful enough to deal with all the technicalities of international litigation.

62 Various universities began to teach international law and thus textbooks of international law started to be written, not simply translated, by Japanese scholars. Together with the Japanese Association of International Law established in 1897 (see para. 87 below), education and publication contributed to the dissemination of international law in Japan.

2. Korea’s Breakaway from the Tributary Relations

63 While, as mentioned above, Chosŏn saw the 1876 Treaty of Peace and Friendship with Japan in the framework of the tributary relations, its conclusion led Chosŏn to understand the relevance of international law to their foreign relations. Martin’s Chinese translation of Wheaton’s Elements was introduced by a Japanese diplomat in Chosŏn in 1877. This did not, however, mean Chosŏn’s immediate breakaway from the tributary relations: when it concluded a Treaty of Amity, Commerce and Navigation with the US in 1882 (160 CTS 261), the Chosŏn king stated that his country enjoyed full independence as a State tributary to China. Despite this statement based on the logic of tribute/investiture relations, the conclusion of the 1882 treaty with the US, and of two others with the UK (163 CTS 15) and Germany (163 CTS 37) in 1883, clearly indicates the gradual eclipse of the tributary conception of inter-State relations in Chosŏn.

64 Alerted, Qing tried to maintain its superior status, for example by concluding a Sino-Korean Regulations for Maritime and Overland Trade in 1882 (the title ‘Regulations’, zhang cheng in Chinese, was often used for rules applied between China and a tributary State) or by quashing Korean insurgents (supported by Japan) demanding the termination of Chosŏn’s tribute to China in 1884. The Geomun-do (Port Hamilton) incident, in which three ships of the British Royal Navy occupied a small group of islands off the southern coast of the peninsula from 1885 to 1887, was settled by negotiation between the UK and Qing, not Chosŏn. It is, however, to be noted that Chosŏn officials lodged a protest against the UK on the basis of international law: this is said to be the very first application of international law by Chosŏn.

65 Even the defeat in the Sino-Japanese war did not immediately make Qing abandon its supremacy in the Korean peninsula. The Treaty of Shimonoseki (181 CTS 217), signed in 1895 as a result of the Sino-Japanese War, stipulated in its Art. 1:

China recognizes definitively the full and complete independence and autonomy of Korea, and, in consequence, the payment of tribute and the performance of ceremonies and formalities by Korea to China, in derogation of such independence and autonomy, shall wholly cease for the future.

Nevertheless, Qing did not immediately agree to conclude a treaty proposed by Chosŏn because, according to the former, the latter was not fully independent. When the Empire of Korea was established in 1897, the Chosŏn king became emperor to manifest a status equal to that of Chinese and Japanese emperors. The name Chosŏn was abandoned, since it had been bestowed by the Ming dynasty. Although Qing first refused to recognize the status of the Korean emperor, it began to moderate its traditional position during the Hundred Days’ Reform in 1898, and the two States finally concluded a Treaty of Amity and Commerce in 1899 on an equal footing (188 CTS 50). The tributary relations between China and Korea were thus terminated.

3. China’s Gradual Assimilation into the European Conception of World Order and Collapse of Tributary Relations

66 As repeatedly mentioned above, the introduction of European international law did not automatically lead Qing to abandon its traditional understanding of the world order. To the contrary, it tried to make use of European international law to maintain or even strengthen its own conception of traditional sinocentric world order. For example, Qing began to behave in the 1870s as suzerain of Chosŏn and Annam (Vietnam), when it felt that its theoretical supremacy in the two States was threatened respectively by Japan and the US, and by France.

67 Another such example is the shift in the Chinese policy regarding the protection of nationals abroad. The traditional policy of granting no protection to nationals abroad had become difficult to sustain in the last half of the 19th century. The 1860 Convention of Peking removed the prohibition imposed upon the Chinese against travelling abroad. The population explosion in China produced an immense number of emigrants who left for Southeast Asia and the Americas, which were then struggling with a serious labour shortage. Miserable labour conditions in which Chinese emigrants, often called ‘coolies’, were placed frequently caused troubles and riots (see the Maria Luz arbitration).

68 The Qing government decided to establish diplomatic and consular missions first in the US, Peru, and Cuba (Spain) and later in Singapore (the UK) in the 1870s, in order to protect Chinese residents. This certainly signified a major shift from the policy of no protection of nationals who had voluntarily lost the benefit of the emperor’s virtue. However, the protection of nationals abroad could be understood in harmony with another principle of the Chinese traditional world order, ie personal jurisdiction. Qing enacted the nationality law at the very end of its existence in 1910 to facilitate the protection of nationals abroad. Later, the Republic of China and the People’s Republic of China would continue to develop networks of Huáquiáo or overseas Chinese.

69 While Qing tried to retain its tributaries, there remained only three in the latter half of the 19th century: Chosŏn, Ryukyu, and Annam. When Japan incorporated Ryukyu in 1879 (see para. 59 above), Qing raised strong objections. Although the two States tried to reach a compromise through the mediation of former US President Grant in 1879, the dispute would be definitively ‘settled’ by the Sino-Japanese War: the secession of Taiwan to Japan following the war made the dispute over the status of Ryukyu meaningless. Annam became part of Indochine française in 1887. Chosŏn, for its part, severed its tributary relations with Qing in 1899 (see para. 65 above). The tributary relations thus disappeared.

E. Colonial Era

1. China: Centre of the World Turned into Competition Field for Colonial Powers

70 The Sino-Japanese War and the Treaty of Commerce between Qing and Korea completely terminated the era of tribute/investiture relations. China was turned from the Middle Empire to a theatre in which colonial powers fought fierce competition.

71 The Treaty of Shimonoseki marked Japan’s new departure as a colonial State: Taiwan, the Pescadores, and the Liaotung peninsula were ceded to Japan. However, the ‘Triple Intervention’ by other colonial powers—Russia, Germany, and France—forced Japan to retrocede Liaotung to Qing (182 CTS 127). Japan also concluded a Treaty of Commerce and Navigation with Qing in 1896 (183 CTS 152). It was an ‘unequal’ treaty setting forth unilateral most-favoured-treatment and unilateral consular jurisdiction for Japan. It is to be noted that this unequal treaty was concluded precisely at the time when Japan was in the process of the revision of unequal treaties that it had concluded with Western powers (see para. 60 above).

72 Other powers joined the ‘scramble for concessions’. In 1898, Germany concluded a treaty with Qing by which Kiaochow was leased to the former for 99 years (186 CTS 187). Within a few months, Russia leased the Liaotung for 25 years (186 CTS 201), the UK Kowloon for 99 years (186 CTS 310) and Weihaihei for 25 years (186 CTS 354), and France Guangzhou Bay for 99 years (186 CTS 291). Following the Boxer Incident of 1900, the Xinchou Treaty (Boxer Protocol) was concluded between Qing on the one hand and Japan, the US, and nine European powers on the other hand (190 CTS 61). The treaty, often considered as the most humiliating unequal treaty in China, envisaged, inter alia, the stationing of foreign troops at key points from Beijing to the sea, the establishment of the legation quarters in Beijing, and the creation of an office of foreign affairs, the last of which signified the recognition at the internal level of the abolition of the tribute system.

73 After the Russo-Japanese war of 1904–1905, in which Qing declared neutrality, the Portsmouth Peace Treaty (186 CTS 230) was concluded in 1905 through the good offices of US President Theodore Roosevelt, so that Russia ceded the lease of Liaotung and the concession of the South Manchurian Railway to Japan. This transfer was confirmed by a Sino-Japanese treaty of the same year (200 CTS 100). In 1911, the Xinhai Revolution broke out. The Republic of China, the first republic in Asia, was established and the Qing emperor declared his abdication in 1912. The Zhonghua Minguo linshi yuefa, or the Provisional Constitution of the Republic of China (1912), symbolized China’s acceptance of the European conception of the world order in two interrelated ways. First, for the first time in its history, China called itself a State: Art. 1 provided that Zhonghua Minguo or the Republic of China (‘guo’, meaning a State) was composed of the Chinese people. Secondly, Art. 3 provided that the territory of the Republic of China consisted of 22 provinces, Inner and Outer Mongolia, Tibet, and Chinghai. It used the term ‘lingtu’, a translation of the Japanese term ‘ryodo’, and recognized that China had a geographically limited space to govern. It is to be recalled that the successive Chinese dynasties had not considered themselves to be ruling over a State but rather Tianxia, ‘all under heaven’ or the entire world.

74 During World War I, Japan presented to China the Twenty-One Demands, including recognition by China of the predominant status of Japan in southern Manchuria and eastern Inner Mongolia, the invitation of Japanese advisers to the Chinese Government, etc. Although Japan dropped some of the demands in the face of US opposition, it secured the signature of two treaties with China regarding Shantung, southern Manchuria, and eastern Mongolia in 1915 (221 CTS 75).

2. Mongolia: Gradual Independence

75 During the reign of the Qing dynasty, Mongols were organized in a number of autonomous ‘banners’. Each banner had a zasag, or a ruler, as its head. The zasags, virtually all of whom were descendants of Genghis Khan or his brothers, were simultaneously hereditary Qing officials and representatives of Genghis Khan. The zasag was the banner’s supreme instance, but unsatisfied plaintiffs could appeal to the Lifan Yuan (Court of Administration of the Dependencies) in Beijing.

76 As a part of the administrative reform attempted by the moribund Qing dynasty at the beginning of the 20th century, the Lifan Yuan was turned into Lifan Bu (Ministry of Dependencies). Qing finally decided to Europeanize their governmental system to survive in the turbulent world, and tried to replace the ‘banners’, based on the traditional tributary system, with a department, which meant the incorporation of Mongolia. Qing’s attempt to incorporate Mongolia aroused fierce opposition among Mongolians. Taking advantage of the decline of the Qing dynasty, which was finally ousted by the Xinhai Revolution, the Khalkha nobles declared the independence of Mongolia in 1911.

77 As the newly born Republic of China under President Yuan Shikai had no intention of recognizing the independence of Mongolia, the latter had to solicit recognition from Russia, which, however, had recognized the ‘special interests’ of Japan in eastern parts of Inner Mongolia by a secret treaty of 1912 (43 Nippon Gaiko Bunsho, Doc No 88). The treaty concluded between Mongolia and Russia in 1912 was deliberately made ambiguous concerning the statehood of Mongolia.

78 It is in this period that European international law was introduced in Mongolia. During the negotiation with Russia, Mongol delegates referred to the Chinese translation of Bluntschli’s Das moderne Völkerrecht der civilisirten Staaten als Rechtsbuch dargestellt (translated into Chinese from the French translation Le droit international codifié). A Mongolian embassy sent to Russia following the 1912 treaty brought a Mongolian translation of Martin’s Chinese translation of Wheaton’s Elements. It is not known when this apparently first book of international law in Mongolian was translated or by whom.

79 By a joint declaration issued in 1913, Russia recognized that Outer Mongolia was under the suzerainty of China and China recognized the autonomy of Outer Mongolia (219 CTS 13). This was confirmed by the Treaty of Kyakhta concluded between China, Mongolia, and Russia in 1915, by which Mongolia recognized the suzerainty of China (221 CTS 101). Interestingly, Art. 4 provides:

Le titre Bogdo Djembzoun Damba Khoutoukhtou Khan de la Mongolie extérieure est conféré par le Président de la République chinoise, dont le calendrier sera employé dans les pièces officielles, ainsi que le calendrier mongol aux signes cycliques.

This indicates that the Republic of China still followed the logic of the tribute/investiture relations. However, at the same time, Art. 2 stipulates:

La Russie et la Chine reconnaissent l’autonomie de la Mongolie extérieure faisant partie du territoire chinois (emphasis added)

while Art. 5 says:

La Russie et la Chine … reconnaissent le droit exclusif du Gouvernement autonome de la Mongolie extérieure de pouvoir à toutes les affaires de son administration intérieure et de conclure avec des Puissances Étrangères des traités et des accords internationaux concernant toutes les questions d’ordre commercial et industriel (emphasis added).

In the framework of tribute/investiture relations, the territory of a tributary State did not constitute part of the territory of the Middle Empire and a tributary State held the autonomy in any external affairs as long as its policy did not present a threat to China. It seems that the Republic of China tried to replace its status as the Middle Empire with that of suzerain recognized under European international law (see para. 66 above).

80 However, this ambivalent situation did not last. The President of the Republic of China abolished Mongolia’s autonomy by a decree in 1919 with a view to excluding Japan’s and the Soviet Union’s influence in Mongolia. This repressive measure led to a revolution in 1921 and the Mongolian People’s Republic was established in 1924. It was not until 1946 that China recognized the independence of Mongolia.

3. Korea: From a State Tributary to China to a Colony of Japan

81 Following the defeat in the Sino-Japanese war, Qing was forced to withdraw from the Korean peninsula and Russia entered the theatre. In 1896, a secret treaty of alliance was concluded between Russia and Qing (182 CTS 425). It obliged the two parties to afford mutual assistance in case of Japan’s attack on Chosŏn. Chosŏn itself concluded a similar agreement with Russia in the same year. They would not be implemented, however, due to the Russo-Japanese war.

82 Already during the Russo-Japanese war, Japan secured US consent to establish its protectorate over Korea in exchange for Japan’s recognition of the US domination in the Philippines (Katsura-Taft Agreement of 1905, 38(1) Dai Nippon Gaiko Bunsho, Doc No 193). The UK also confirmed Japan’s right to take measures of protection in Korea in exchange for Japan’s recognition of Britain’s right to take necessary measures to protect the security of the Indian frontier (Second Anglo-Japanese Alliance, 1905, 199 CTS 90). Russia took the same position by the Portsmouth Treaty. Japan then proceeded to the conclusion of the Protection Agreement with Korea on 17 November 1905, by which Japan assumed ‘control and direction of the external relations and affairs of Korea’ (199 CTS 399). Japan’s protection was recognized also by France (10 June 1907, 204 CTS 227).

83 Although Korea had already lost the control of its foreign relations, the emperor sent a mission without Japan’s consent to the second Hague Peace Conference (Hague Peace Conferences [1899 and 1907]) to appeal the illegitimacy of the Japanese protectorate. The States participating in the Conference, including Qing, however, ignored the appeal and Japan proceeded to the conclusion of an agreement with Korea to secure control over the internal administration of Korea in 1907 (204 CTS 316). Japan finally incorporated Korea by the Treaty of Annexation of 22 August 1910 (212 CTS 43).

84 The validity of the 1905 Protection Treaty and of the 1910 Annexation Treaty has been the subject of a heated debate between Japan and Korea since the end of World War II, though no State questioned the validity of the treaties at the time of their conclusion. The 1965 Treaty on Basic Relations between Japan and the Republic of Korea (583 UNTS 43) stipulates in Art. 2 that ‘all treaties or agreements concluded between the Empire of Japan and the Empire of Korea on or before August 22, 1910 are already null and void’. It is generally considered that the two parties deliberately agreed on this ambiguous text to enable them to maintain their respective positions, mutually contradictory, on the basis of this article.

4. Japan: Realpolitik Perspective on International Law

85 During this period, Japan took pains to respect international law and to let the Western powers know that it was doing so. The imperial edict on the declaration of war against China, dated 1 August 1894, ordered it to ‘make use of every means … so long as it is not in contravention of international law’. The Japanese government had two legal advisers accompany the army and the navy and they published reports after the war to explain how Japan had respected the law of war during the Sino-Japanese conflict (Ariga [1896], Takahashi [1899] and [1900]).

86 This pattern was repeated in the Russo-Japanese War of 1904–1905. The imperial edict on the declaration of war against Russia, dated 10 February 1904, again ordered forces to ‘attain the national aims with all the means within the limits of international law rules’. Ariga and Takahashi again published books in Europe for the same purpose (Ariga [1908] and Takahashi [1908]).

87 In the meantime, the Japanese Association of International Law was established in 1897 as the first academic society in legal science in Japan. Regular meetings of experts in international law became necessary to cope with a number of international law issues arising from the revision of ‘unequal’ treaties, as well as from the implementation of the Treaty of Shimonoseki. The Association, with strong support from the Japanese government, started publishing Kokusai Ho Zassi (Journal of International Law) in 1902, which is one of the oldest periodicals on international law not only in East Asia but also in the world. The journal, renamed Kokusaiho Gaiko Zassi (Journal of International Law and Diplomacy) in 1912, published articles mainly written in Japanese and contributed to the domestic dissemination of knowledge and understanding of international law.

F. Interwar Period

1. Paris Peace Conference and the League of Nations

88 China and Japan participated in the Paris Peace Conference. China had declared war against Germany in 1917 as attacks by German submarines were, in its belief, against international law. During the Conference, Japan proposed an article regarding the equality of nations to be included in the Covenant of the League of Nations. The proposed article, which envisaged a progressive obligation to accord as soon as possible to all nationals equal and just treatment, was aimed at the immigration policy of various States restricting immigration or rights of immigrants on the basis of nationality. This proposal, though supported by a majority including European States such as France and Italy as well as China, was rejected by the opposition of the UK, the US, and particularly Australia.

89 China did not sign the Versailles Peace Treaty (1919), whose Art. 156 stipulated Germany’s renouncement of rights, titles, and privileges in Shantung in Japan’s favour. However, it became a member of the League of Nations as it ratified the Treaty of Saint-Germain. In the newly created League of Nations, Japan became a permanent member and China was often elected as a non-permanent member of the Council. Chinese and Japanese judges were elected at the Permanent Court of International Justice.

2. Washington System

90 Between 1921 and 1922, the world’s largest powers, with the exception of the Soviet Union, assembled in Washington for a conference to discuss naval disarmament and issues related to East Asia. Of particular relevance here is the Nine Power Treaty concluded at the Conference (38 LNTS 277). Parties to the Treaty, including China, Japan, the UK, and the US, agreed to observe the Root Resolution, to adhere to the principle of the Open Door policy, and not to create spheres of influence or practice discrimination of any kind. The Treaty marked the multilateralization of the US Open Door Policy in China. Japan accepted it because the Root Resolution, in which the parties agreed to refrain from taking measures to seek special rights or privileges which would abridge the rights of the subjects or citizens of friendly States, guaranteed, according to Japan, its special rights and privileges in Manchuria. Through bilateral negotiations that took place in parallel with the Conference, China and Japan signed a Treaty for the Settlement of Outstanding Questions Relative to Shantung in 1922 (10 LNTS 309), by which the former German-leased territory of Kiaochow was restored to China and Japan withdrew its troops therefrom.

3. China’s Revision of Unequal Treaties

91 One of the most important political agendas for China was the revision of ‘unequal’ treaties concluded with Western powers (the treaties with Austria and Germany had already been terminated due to World War I, and the one with Russia due to the Russian Revolution). China targeted ‘smaller’ States and first informed Belgium of its intention to terminate the treaty of 1865 (131 CTS 373), despite its Art. 46 stipulating that only Belgium had the right to declare the treaty terminated. Belgium brought the dispute to the Permanent Court of International Justice, of which both States had accepted the compulsory jurisdiction. The Court handed down an order of interim (provisional) measures of protection in 1927. However, the parties agreed to negotiate a new treaty and when it was signed in 1928, Belgium agreed to withdraw the case from the Court. While the new treaty recognized China’s tariff autonomy, an exchange of letters annexed to it stipulated that Belgian extraterritorial rights would subsist until a majority of States enjoying the same rights should agree to abolish them (100 LNTS 250).

92 It is finally Japan’s attack on Pearl Harbor and the outbreak of the Pacific War that paved the way for the revision of unequal treaties. After long and difficult negotiations, China concluded a Treaty for the Relinquishment of Extraterritorial Rights in China with the US (10 UNTS 268) and a Treaty for the Abolition of Extraterritoriality with the UK in 1943. The abolition of inequality was not complete, however, as the UK refused to abandon its rights and privileges in Kowloon and Tibet.

93 In the meantime, Japan concluded, just a few days before the conclusion of the above-mentioned China-US and China-UK treaties, a Treaty with the ‘Republic of China’ led by Wang Jingwei, by which all the leased lands were retroceded and the extraterritorial rights were abolished. Italy and France under the Vichy government followed Japan by unilateral declarations. However, as a large majority of States did not recognize the Wang Jingwei government, these measures were considered to be devoid of legal effect.

4. From the Manchuria Incident to World War II

94 The Manchuria Incident broke out on 18 September 1931, when the Kwantung Army (Japanese army stationed in Manchuria under the 1905 Treaty with Qing) launched an attack on the Chinese army in Mukden, Manchuria. Japan invoked the right of self-defence: the Kwantung Army’s actions were in conformity with the Kellogg-Briand Pact (1928), according to Japan, due to the self-judging nature of the right of self-defence, as indicated in reservations formulated by the US and other States Parties to the Pact. In the face of the creation of ‘Manchukuo’ (1 March 1932), a puppet State, the League of Nations Assembly adopted a resolution stating that:

It is incumbent upon the Members of the League not to recognize any situation, treaty or agreement which may be brought about by means contrary to the Covenant of the League or to the Pact of Paris.

Japan declared its withdrawal from the League on 27 March 1933.

95 Neither Japan nor China declared war even after outright armed conflict was launched in 1937 (second Sino-Japanese War). Japan wanted to avoid the involvement of other States, while China needed war materials imported from third neutral States, which would be terminated once the formal state of war was declared.

96 Japan attacked Pearl Harbor and the Pacific War was sparked in December 1941. It is interesting that the imperial edict on the declaration of war against the US and the UK, dated 8 December 1941, contains no reference to international law, contrary to those issued upon the (first) Sino-Japanese War or the Russo-Japanese War (see paras 8586 above). Japan, which had generally been considered to be sincerely respectful of the law of war in these two preceding wars, committed a large number of serious war crimes during World War II. Japan accepted the Potsdam Declaration on 14 August 1945 and signed the Instrument of Surrender on 2 September 1945 (Potsdam Conference [1945]).

5. War Aims or Post-War Visions

97 China participated in the United Nations Declaration (1942), the Cairo Declaration (1943), and the Dumbarton Oaks Conference (1944). China, as one of the ‘Four Policemen’ (Franklin D Roosevelt), was thus deeply involved in the discussion on the construction of the post-war world order.

98 Japan launched the concept of ‘Greater East Asia Co-Prosperity Sphere’, in which Japan was supposed to hold a leading status as the liberator of Asian States from Western colonialism. Japan organized the Greater East Asia Conference in November 1943, in which (puppet) States under Japanese domination participated. The Joint Declaration adopted by the Conference stated that the ‘countries of Greater East Asia’ undertook to cooperate towards ‘liberating their region from the yoke of British-American domination’. Contemporary Japanese international law scholars supported and strove to refine the concept on the basis of Carl Schmitt’s idea of Großraumordnung. The concept, however, disappeared with Japan’s defeat in World War II.

6. Teaching and Study of International Law

99 Japanese academics, busy with learning, translating, and introducing European and American studies on international law until then, started to produce original works from around World War I. In the interwar period, there were 16 universities, most of which had a faculty of law teaching international law, including in colonized Korea. In addition to the Japanese Association of International Law, the Japan Branch of the International Law Association (ILA) was established in 1920.

100 In China, international law also began to be taught at universities by Chinese professors, who had often studied international law in Japan, Europe, and/or the US. The first textbook of international law written by a Chinese author appeared in 1929 (Zhou Gesheng A General Outline of International Law).

G. Since the End of World War II

101 Most of the issues that could be dealt with in this section are treated in detail in other entries (Asian-African Legal Consultative Organization [AALCO]; Asia-Pacific Economic Cooperation [APEC]; Bandung Conference [1955]; China; Diaoyu/Senkaku Islands; Hong Kong; International Military Tribunals; Korea; Korean War [1950–53]; Kuril Islands; Macau; Peace Treaty with Japan [1951]; Property Commissions Established pursuant to Art. 15 Peace Treaty with Japan [1951]; Regional Co-operation and Organization: Asian States; Taiwan; Tibet; War Reparations). The following lines will thus be limited to a brief description of the evolution of the research and study of international law in East Asia.

1. People’s Republic of China

102 During the first years of the newly born People’s Republic of China (1949–), Soviet experts were invited to promote the study of international law and to train international lawyers. The Chinese Political Science and Law Association joined the International Law Association in 1956 and an Institute of International Law was created in 1964. However, with the rise of the ‘Cultural Revolution’ (1966–77), the study and research of international law was suspended. Both the Chinese Political Science and Law Association and the Institute of International Law were abolished, as well as all law faculties in universities.

103 Since the end of the Cultural Revolution, international law has rapidly regained the interest of Chinese officials and academics. Universities resumed teaching international law and in 1980 the Chinese Society of International Law was established. The Society publishes the Zhong Guo Guo Ji Fa Nian Kan (Chinese Yearbook of International Law) and now the Chinese Journal of International Law.

2. Republic of China (Taiwan)

104 In the Republic of China, which represented China at the United Nations and thus occupied the permanent seat in the Security Council until 1971, international law was an important discipline. The Chinese (Taiwan) Society of International Law, which is also the Chinese (Taiwan) Branch of the International Law Association, was founded in 1958. The Society publishes the Chinese (Taiwan) Yearbook of International Law and Affairs and the Chinese (Taiwan) Review of International and Transnational Law. In 2004, the Taiwan Society of International Law was established. The Society publishes Tai Wan Guo Ji Fa Ji Kan (Taiwan International Law Quarterly). The Xamen Academy of International Law, established in 2005, publishes Collected Courses of the Xiamen Academy of International Law.

3. Japan

105 Following the surrender in World War II, Japan was occupied by the Allied forces until the entry into force of the 1951 Security Treaty between the US and Japan (136 UNTS 215). Japan was admitted to the United Nations only in 1956. The Japanese Association (renamed Japanese Society in 1995) of International Law and the Japan Branch of the International Law Association continued their activities and the latter launched the Japanese Annual of International Law in 1957 (Japanese Yearbook since 2008). In recent years, various specialized academic institutions on international law have been established: the Japanese Association of World Law (1976: Sekaiho Nenpo [Yearbook of World Law]), the International Human Rights Law Association (1988: Kokusai Jinken [Human Rights International]), and the Japan Association of International Economic Law (1991: Nihon Kokusai Keizaiho Gakkai Nenpo [International Economic Law]).

4. Republic of Korea

106 International law has been taught in all law faculties in universities since the end of the Korean War. The study and research of international law was firmly supported by Rhee Syngman, the first President of the Republic of Korea (‘ROK’), established in 1948, who had obtained a doctorate in international law from Princeton in 1912. The Korean Society of International Law was founded in 1953. The fact that it is the first academic society in legal science in the country indicates the widespread understanding of the practical importance or necessity of the study of international law. The Society has published the Kukchepŏp Hakhoe nonch’ong (Korean Journal of International Law) since 1956 and joined the International Law Association as the Korean Branch in 1964.

107 During the difficult period of the Park presidency (1963–79) and the Chun presidency (1980–88), the study of international law was rather limited. Since the end of the Cold War and the ROK’s accession to the United Nations in 1991, the study of international law has been rapidly growing in the ROK, as testified, inter alia, by the creation of the Korean Journal of International and Comparative Law (published by the Korea Institute of International and Comparative Law since 1997; formerly Korean Journal of Comparative Law) and the Journal of East Asia and International Law (published by the Yijun Institute of International Law since 2008).

5. Democratic People’s Republic of Korea

108 Little is known about the conditions of the study of international law in the Democratic People’s Republic of Korea (‘DPRK’). The status of international law in the DPRK’s legal order is also unclear. Although the DPRK’s constitution, as amended in 1998, mentions international law relating to the protection of its own nationals (Art. 15: ‘[The DPRK] shall champion the democratic national rights of Koreans overseas and their rights recognized by the international law …’), it stays silent about the role of international law with regard to the protection of foreigners in the DPRK (Art. 16: ‘[The DPRK] shall guarantee the legal rights and interests of foreigners in its region.’).

6. Asia-wide Networks

109 Besides the Asian-African Legal Consultative Organization (‘AALCO’), LAWASIA (an organization composed of practicing lawyers and academics interested in the Asia Pacific region, since 1966), the Development of International Law in Asia (DILA: A foundation based in The Hague since 1989), and the Asian Society of International Law (since 2006) all contribute to fostering networks and promoting researches relating to international law in Asia. They publish, respectively, the LAWASIA Journal (since 1969), the Asian Yearbook of International Law (since 1991), and the Asian Journal of International Law (since 2010).

Select Bibliography