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Nanjing (1842): Unequal Treaties and the Right to War

By: Randall Lesaffer

The Peace Treaty of Nanjing of 29 August 1842 (93 CTS 465), which put a formal end to the First Opium War between China and Great Britain (1839–1842), is often listed as the first of the unequal treaties whereby foreign, mainly Western powers broke open the doors of trade to the Middle Kingdom and forced it into the logic of imperial international law.

On the one hand, the treaty brought China under the aegis of international law as a system of regulation for relations among equal, sovereign states. The treaty was largely written in the form and language of peace treaties among European or Western powers. Its Article 11 insisted that officials from both states would correspond with one another ‘on a footing of perfect equality’. Thereby, the British secured, in their own interpretation of the article, both an acknowledgement from the Chinese imperial government that it belonged to the family of sovereign states as an equal party and the forswearing of the Confucian view of a world order with China at its centre.

On the other hand, the peace treaty imposed on China a special regime of imperial international law that served the needs of Britain’s commercial and maritime interests and treated China as a lesser, unequal partner in terms of the material conditions of the treaty. The peace conditions forced China to open four additional ports to British trade and residence in addition to Guangzhou (Canton). The one-sided imposition of a fixed trade tariff of 5% on the import and export to and from China restricted China’s fiscal jurisdiction. Few European or Western states would ever accept such unilateral limitations on their sovereignty, except in the direst of circumstances (eg Treaty of Whitehall between Great Britain and Portugal, 23 June 1661, Art. 12, 6 CTS 327). Nevertheless, they became a fixed element of the peace and commerce treaties whereby foreign powers would further break open the Chinese markets during the rest of the nineteenth century and the beginning of the twentieth century. The Nanjing Treaty did not provide for a regime of extraterritorial jurisdiction for Western traders and citizens. This regime, which became a common feature in later unequal treaties, was first introduced in the American-Chinese Treaty of Wang Hiya of 3 July 1844 (97 CTS 105).

There was a third common instrument of inequality in imperialist relations between Western and non-Western states in the nineteenth and early twentieth centuries, in addition to one-sided restrictions on commercial and fiscal sovereignty and extraterritorial jurisdiction. That was the use of force or war to vindicate rights, through forcible reprisal or a discriminatory conception of war, which was highly reminiscent of the old ‘just war’ doctrine. The Peace Treaty of Nanjing offers an example thereof.

Under the conditions of the treaty, the Chinese imperial government had to commit to the payment of three sums of reparation, for a grand total of $21 million. Firstly, under Article 4, the British received the right to a payment in the amount of $6 million, for ‘the value of the opium which was delivered up at Canton in the month of March, 1839, as a ransom for the lives of Her Britannic Majesty’s Superintendent and subjects’. This referred to the direct cause of the war.

In 1839, the Chinese governor of the Hunan and Hubei provinces, Lin Zexu (1785–1850), had been sent south to Guangzhou to step up the Chinese efforts to stem the illegal import of opium into China. After having made an appeal through an open letter to Queen Victoria (r. 1837–1901) for the British to desist, he demanded the surrender of all opium in the British settlement at Guangzhou and arranged to cut off the provisioning of the settlement as a means of pressure. The British superintendent, Charles Elliot (1801–1875), had decided to give in. At his own initiative, he made a promise to the Chinese to turn over 20,000 chests while assuring the British merchants generous compensation by the British government, to the tune of £2 million. As there were not enough chests in Guangzhou, British merchants hastened to bring more to Guangzhou and thus expected to cash in a nice, secure profit. As the British government was not aware of this financial commitment, Elliot and local allies in China and London had few qualms about escalating the conflict in order to enlist public opinion and pressure the government into action. New measures by Lin led to further confrontation in China while a jingoist press campaign in the motherland launched the government under Lord Palmerston (1784–1865) into action. The Opium War was the result. Its official justification did not refer to opening up the opium trade in China, but was construed as resulting from the insults and harassment already suffered by the British crown through its superintendent and its subjects. The war was waged in reprisal thereof, in order to seek compensation. The Nanjing Peace Treaty achieved this.

The Chinese government had to accept making another payment of $3 million to clear some debts by the cohong, Chinese merchants who held a monopoly on trading with foreigners, to the British government and subjects (Article 5).

But the final $12 million offered the clearest expression of the discriminatory nature of the war. Article 6 stated that this payment was due to cover the expenses the British government had made as it had ‘been obliged to send out an expedition to demand and obtain redress for the violent and unjust proceedings of the Chinese High Authorities’.

With this, the peace treaty clearly stepped into the discriminatory logic of just war. Peace treaties between Western sovereign powers were, since the Late Middle Ages, with very few exceptions, made under a conception of war as an equal contention between two states both of which had a right to wage the war. Under this conception, which Hugo Grotius (1583–1645) and Emer de Vattel (1714–1767) had called formal war (bellum solemne, guerre en forme), a war was a means to settle a dispute between sovereign states over an acclaimed right. As both parties had a right to resort to force and war for the settlement of these disputes, both of them benefited from the protection and the advantages of the laws of war (jus in bello), which cloaked their wartime actions in legality. As a consequence, no compensation was due for the damages or costs of war, at least not on the basis of a claim that one of the belligerents had acted illegally by causing the war. Out of the more than 2,000 peace treaties made among European and Western sovereign states since 1450, only a very few contained an attribution of the responsibility of guilt for the war to one of the parties. Peace treaties also standardly, or even implicitly, contained a clause of amnesty that legalized all wartime actions post factum.

With Article 4 and particularly Article 6, the Nanjing Peace Treaty broke the logic of formal war and applied the logic of just war. A just war is a one-sided forcible action to defend or vindicate a pre-existing right after its injury. It is discriminating as it opposes a just to an unjust side. In a consequential application of the doctrine, a just war results in a just peace, whereby the injured right is restored or compensated for, and the just belligerent is entitled to compensation for the damages and costs of the war.

The discriminating discourse of just war was not absent from the practice of European and Western states between the Late Middle Ages and the nineteenth century. It was generally deployed to justify decisions to resort to war in declarations and manifestos of war issued at the conflict’s inception. But because there was no neutral forum to decide the justice of opposing claims, and sovereigns would only at the times of greatest weakness be willing to acknowledge their injustice, the discourse of just war was an impractical basis for a compromise peace. Hence, peace treaties were made on the basis of the assumption that all belligerents had a right to wage war. The fact that the discriminating logic of just war was used to frame China’s financial concessions was a humiliation that no great power from the West would ever accept. Not until the Peace Treaty of Versailles of 28 June 1919 with Germany (225 CTS 188) did a Western state have to undergo similar treatment.


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