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From Kanghwa to Shimonoseki: The Disputes over the Sovereignty of Tributary Chosŏn Korea

By: Hyoung-Jin Nho

From the 1830s to the 1890s, the traditional Confucian, international legal order in East Asia—roughly China, Japan, and Korea—faced radical transition in the encounter with Western international law. Ranging from the First Opium War in 1839–42 to the First Sino-Japanese War in 1894–95, a series of events marked a great transition in the region’s international legal order. The treaties concluded in this period take a special position as they left traces of interim terms, which revealed the nature of this transition from the East Asian to the European traditions of international law.

The international legal order in East Asia comprised a set of norms governing inter-polity relations. The Confucian principles enshrined in the Chinese classics and the rules of tributes elaborated in the Chinese statutes [huìdiǎn] constituted the backbone of the system. Not surprisingly, the system was built upon a Sino-centric hierarchy with a universal world image wherein its juridical sphere extended to any human societies under the sphere of Confucian culture [tiānxià]. Although it inherently had a hierarchical nature by which the Chinese emperor imposed tributes upon neighbouring rulers, such a hierarchy was also supported and co-shaped by local rulers themselves to legitimize their crowns. Many recent scholars have pointed out that the system was flexible rather than static, mutually beneficial rather than unilaterally exploitative, and mitigating rather than punitive, while admitting that its content and scope varied over time. From antiquity to the mid-nineteenth century, Confucianism had virtually monopolized international legal thinking in East Asia and had never been seriously challenged by rival ideas of ordering states.

For a more profound understanding of this issue, the must-see treaties are not necessarily matched with the choice made in conventional scholarship. In fact, this history of transition cannot be satisfyingly explained merely through the studies of the treaties related to the ‘encounter’ between Asia and the West. These studies have put an emphasis on the external impact made by the Western mercantile empires on the opening of East Asian states and the establishment of unequal regimes such as the rules of extraterritoriality. It is well known that, for example, through the Treaty of Nanking of 29 August 1842 (93 CTS 465) and the Treaty of Kanagawa of 31 March 1854 (111 CTS 377), Qīng China and Meiji Japan began to be bound by universal international law. It is less well-known, however, that the Western contracting parties did not completely purge the remnants of the old system.

The intra–East Asian treaties are useful to observe the transition from the inside. Among other things, the Treaty of Peace and Friendship between Chosŏn Korea and Meiji Japan (hereinafter, the ‘Treaty of Kanghwa’), signed on 26 February 1876 (150 CTS 323), and the Treaty of Peace between Qīng China and Meiji Japan (hereinafter, the ‘Treaty of Shimonoseki’), signed on 17 April 1895 (181 CTS 217), were key transitional instruments. They represented the legal disputes among China, Japan, and Korea over the interpretation of the text of treaties in which conceptual conflicts between Western and East Asian legal thinking were deeply embedded. As a common party of both treaties, Japan, a former tributary that had been assimilating Western modernity, played a significant role in the breakdown of the old system.

Through reforms initiated by the Meiji Restoration in 1868, Japan not only became a rising industrial power but also drastically challenged the Sino-centric layout of international norms in East Asia. Along with the overhaul of her state system towards European civilization [bunmeikaika], Japan made efforts to end its unequal status vis-à-vis Western powers and to enter the group of civilized nations. The Meiji government’s policy line had drawn it into becoming an active agent for Western international law. The opening of the Chosŏn kingdom, for example, did not take place through the sort of Western pressure that the Qīng dynasty and the Tokugawa shogunate had experienced. Just over two decades from the time of Japan’s encounter with the West in 1853 and 1854, Korea’s first modern treaty, namely the Treaty of Kanghwa of 1876, was imposed not by Western gunboats but by the Unyō, a warship belonging to the Imperial Japanese Navy.

On 26 February 1876, the Treaty of Kanghwa (150 CTS 323) between Meiji Japan and Chosŏn Korea was signed in Chinese and Japanese at Kanghwa Island, Korea. It was the first modern treaty for Korea and, for Japan, the first unequal treaty concluded with a non-Western state. Japan followed the examples of the Treaty of Kanagawa signed two decades earlier wherein the United States imposed unequal conditions on herself. The Treaty of Kanghwa stipulated opening three Korean trade ports to Japan (Articles 4 and 5), the right to conduct surveys in the seas off the coastline (Article 7), and extraterritoriality (Article 10). During the ensuing negotiations over the detailed terms of trade, the supplementary treaty of 24 August 1876 (151 CTS 51) further guaranteed extra Japanese privileges, such as duty-free importation of Japanese goods carried by the ships belonging to their government, which were unmistakably absent in the antecedent in Kanagawa.

The groundbreaking provision of the Treaty of Kanghwa, however, was its Article 1, which was deliberately drafted by the Japanese special envoy Kuroda Kiyotaka in order to, as Larsen put it, ‘shake Korea loose from the Sino-centric orbit’. It provided: ‘Chosŏn, being an independent [chaju or jishu] state, enjoys the same sovereign rights [p'yŏng-tŭng-chi-kwŏn or byōdō-no-ken] as does Japan’. According to established rules of international law, the sovereign equality of both parties was generally acknowledged in treaty making and not necessarily clarified in the text of those treaties. This redundancy in the provision in Article 1 was intended by Japan to articulate the legal personality of the Chosŏn kingdom as a full-fledged sovereign state. In doing so, it would provide the legal basis for Korea’s independence from the influence of the traditional suzerain, China.

One major reason for this proposal was to safeguard Japan’s own security among the great powers. As a still-emerging power in East Asia, for Meiji Japan, assistance to the sovereignty of Korea was deemed as the best geopolitical strategy in order to prevent the Korean peninsula from falling into the hands of rival powers, such as China and Russia. It was therefore a contingency plan to prevent a ‘dagger pointed at the heart of Japan’, as phrased by German military adviser Jacob Meckel, who worked for the Meiji government.

Interestingly, regardless of Japan’s original intention, the term ‘independent [chaju or jishu]’ in Article 1 was differently interpreted by the Confucian side. Korea understood the term in accordance with the Confucian principle jeong-gyo-geum-nyeong: ‘the political and legal matters of tributary states are totally in the hands of them’. Based on this old idea, firstly, Korean chief negotiator Shin Hŏn did not have much difficulty in accepting the sovereignty of the Chosŏn kingdom as a fait accompli. From the Korean point of view, the concept of ‘independent state’ was consistent with the statehood of the tributary-yet-sovereign Chosŏn kingdom and with its diplomatic approaches towards its neighbors for centuries. The Zǒnglǐ Yámén, a de facto Ministry of Foreign Affairs in Qīng China, had already confirmed this view, reiterating that Korea was entirely independent in her relations with other states. For example, in the letter of 10 March 1868 from Prince Kung to Samuel Wells Williams, US Minister to China, China confirmed: ‘Although Chosŏn is in one sense a dependency of China, her … proceedings in this matter (eradicating western religion and forbidding its exercise) are carried on by themselves just as they please’ (Kim (2001) 81).

Secondly, as a consequence, Chosŏn King Kojong along with his officials did not allow any fundamental changes in the later course of relations with Japan and China. At best, Korean intellectuals regarded this treaty as a sign of thawing relations with Japan, which had been frozen since 1869 when the Meiji government had begun to use the character ko (literally, the emperor) referring to its ruler. After both parties uneasily compromised on the text, this treaty became valid while it heralded fierce ideational conflicts between Western international law and the Confucian international legal order in East Asia.

The following two decades (1876–95) can be depicted as a tug-of-war between China and Japan, putting Korea in the middle. This unique international legal equilibrium had never been stable as it was sustained only through diplomatic compromise and a precarious balance of power. The best illustration of such a tension would be the Convention between China and Japan for the Withdrawal of Troops from Korea, signed on 18 April 1885 (166 CTS 99), which had been concluded after the Gapsin coup in Korea in which Japanese troops who had come to support the Korean modernists were driven out by Chinese soldiers. In this treaty, ‘two great Empires’ agreed to withdraw their troops from Korea in order to leave it as a buffer state between them. It was therefore not surprising that the final blow to the Confucian system was later struck by Japan rather than by any Western empire as many observers would have expected. The long-sustained East Asian system had crumbled from the inside out at the turn of the century.

The intellectual confrontation reached its peak in the mid-1880s and transformed into military collision in 1895. This year marked the breaking point of legal arguments and the First Sino-Japanese War materialized. Japanese victory brought her some important gains. First, the war served Japan’s interests as Korea was fortified as their own stronghold against the looming Russian threat. Second, Japan’s strategic use of force during the war granted it an international seal of approval for its efforts to westernize its state system. Based on this accreditation, Japan defended its invasion of China as a move to join with civilized Westerners in the new international order. The war not only re-established the geopolitical balance of power but also shifted the international legal landscape, leaving only the final instrument which would decide the future course of international law in East Asia. In the end, the native legality of the Sino-Korean tributary relations was completely purged in the peace treaty that followed.

The Treaty of Shimonoseki (181 CTS 217) between Qīng China and Meiji Japan was signed in Chinese and Japanese at Shimonoseki, Japan, on 17 April 1895. It sounded the death knell for the Confucian international legal order. If the formation of sovereign equal states unquestionably heralded the modern construction of European international law in Europe, the transfer of its ethos to nineteenth-century East Asia signaled the de-construction of the hierarchical international order infused with the Confucian benevolent hierarchy. In this regard, the treaty was the death certificate of the legality of the Confucian system in East Asia—new Sino-Korean relations on an equal footing were established by the Treaty of Amity and Commerce between China and Korea, signed on 11 September 1899 (188 CTS 50).

Article 1 of the Treaty of Shimonoseki marked the end of an epistemological conflict. Just as the Japanese delegates had placed the ‘independence clause’ in the forepart of the Treaty of Kanghwa two decades earlier, they did so again in this treaty—yet with more caution and from a more dominant position. It provided: ‘China recognizes definitely the full and complete independence and autonomy [dúlì-zìzhǔ or dokuritsu-jishu] 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.’ As HAN put it, the compound word ‘independence and autonomy’ [dokuritsu-jishu] was regarded as an equivalent to sovereignty in the contemporary Japanese textbook, Bankoku-koho, published in 1868 and written by Nishi Amane (1829–97), the first Japanese student who studied international law in Europe (Leiden University, the Netherlands). Nishi coined the compound term out of necessity that ‘neither dokuritsu nor jishu alone could fully explain the Western concept of sovereignty’ (HAN (2010) 15). It appears that the term he coined was adopted by the Japanese treaty drafter later with such intent. The provision dismantled the suzerain–tributary relations between Qīng China and Chosŏn Korea and put an end to their confrontation with revisionist Japan over the legal personality of tributary Korea.

The treaty also signaled that Japan monopolized the Korean peninsula, a geopolitical foothold, to implement its imperialist policy. By demonstrating its military might during the war and concluding this unequal peace treaty, Japan joined the ranks of the great powers, a group of states which were licensed to scramble for territorial and economic benefits in China, in light of her gains of full sovereignty over the Pescadores group, Formosa (Taiwan), and a part of the Liaodong peninsula (Articles 2, 3, and 5), a huge indemnity (Article 4), and most favoured nation status together with new trade ports (Article 6). Only six days later, however, this licence was proven to be conditional: the Triple Intervention on 23 April 1895 (on the part of Russia, Germany, and France) gave Japan another lesson that international law worked only by the consent of other members of civilized nations.

Treaty of Peace and Friendship between Korea and Japan, signed at Kanghwa, 26 February 1876: Kyujanggak Institute for Korean Studies, 朝日修好条規 (traditional Chinese text), and Japan Centre for Asian Historical Record (JACAR), 日朝修好条規 (Japanese text).
Treaty of Peace between China and Japan, signed at Shimonoseki, 17 April 1895: Japan Centre for Asian Historical Record (JACAR), 下関条約 (馬關條約) (traditional Chinese text and Japanese text).

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