Wang Tieya International Law in China Historical and Contemporary Perspectives

INTERNATIONAL LAW IN CHINA:
HISTORICAL AND CONTEMPORARY

PERSPECTIVES
by
WANG TIEYA
0
WANG TIEYA
199
TABLE OF CONTENTS
Introductory remarks 203

Chapter I. International law in ancient China 205
1. International law in the periods of spring and autumn and warring
States 205
2. The Chinese traditional world order 214
3. The tribute system 219
Chapter II. International law in modern China 226
1. The introduction of international law into China 226
2. The imposition of unequal treaties 237
3. The unequal treaty rgime 250
Chapter III. Some aspects of the contemporary Chinese perspective of
international law : (I)fiveprinciples of peaceful coexistence 263
1. Origin and development 263
2. Five principles as fundamental principles of international law . . . . 271
3. Thefiveprinciples and jus cogens 279
Chapter IV. Some aspects of the contemporary Chinese perspective of
international law : (II) the concept of sovereignty 288
1. The principle of sovereignty 288
2. Territorial sovereignty, independence and equality 296
3. Sovereignty and exercise of sovereignty 304
Chapter V. Some aspects of the contemporary Chinese perspective of
international law: (III) the rule pacta sunt servanda 315
1. The scope o pacta 317
2. Treaties and municipal law 326
3. The unequal treaties 333
4. The rule rebus sic stantibus 344
Conclusion 353 3
Bibliography 357
200
BIOGRAPHICAL NOTE
Wang Tieya, born in Fuzhou, China, on 6 July 1913.

B.A. National Tsinghua University, 1933 ; M.A. (International Law) National
Tsinghua University, 1936 ; Research Scholar, London School of Economics,
London, 1937-1939.
Professor of International Law, Peking University, Beijing, 1946-; Vice-
President, Chinese Society of International Law, 1980-; Vice-President, Chinese
Association for the United Nations, 1984-; Associate and Member, Institut de
droit international, 1983-; Consulting member, Canadian Council on Interna-
tional Law, 1985-; Honorary member, European Association for Chinese Law,
1985-; Fellow, the World Academy of Art and Science, 1987-.
Member, National Committee, Chinese People's Political Consultative Coun-
cil, 1983 ; Member, Committee on the Drafting of the Basic Law of the Special
Administrative Region of Hong-Kong, the Chinese People's Congress, 1984-.
Professor of International Law, National Wuhan University, 1940-1942; Pro-
fessor of International Law, National Central University, 1942-1946; Peking
University, 1946-. Chairman, Political Science Department, 1947-1952; Head,
Section on International Law, Faculty of Law, Peking University, 1956-1983 ;
Director, International Law Institute, Peking University, 1983-1985.
Member, Chinese Delegation to the Asian States Conference, New Delhi,
1955; Member, Chinese Delegation to the International Democratic Lawyers
Congress, Brussels, 1956; Legal Adviser to the Chinese Delegation to the United
Nations, 1950, Legal Advisor, Chinese Delegation to the Third United Nations
Conference on the Law of the Sea, Geneva and New York, 1979.
Visiting Scholar, Columbia Law School, New York, 1980, 1989; Visiting Pro-
fessor, School of Law, University of British Columbia, Vancouver, 1988 ; Visi-
ting Professor, School of Law, University of California at Los Angeles, 1989.
Co-Editor in Chief, Chinese Yearbook of International Law, 1982-; Member,
Board of Editors, Ocean Development and International Law : the Journal of
Marine Affairs.
201
PRINCIPAL PUBLICATIONS
Books in Chinese
Studies on New Treaties, 1943.
War and Treaties, 1944.
A Complete Compilation of Sino-Foreign Treaties and Agreements, 1689-1949,
three vols., 1957-1963.
Selected Materials on Modern European International Relations, 1870-1919,
three vols., 1957-1979.
Materials on the Law of the Sea, 1973.
International Law : A Textbook (ed.), 1982.
Materials on International Laws (with Tian Ruxuan), 1982.
Great Encyclopaedia Sinica, Law Volume International Law (with Tiqiang
Chen), 1984.
Documents on the United Nations (with Tian Ruxuan), 1990.
Recent Articles in English
"The Third World and International Law", in R. St. J. Macdonald and
Douglas Johnston (ed.), The Structure and Process of International Law:
Essays in Legal Philosophy, Doctrine and Theory, 1983.
"China and the Law of the Sea", in Douglas Johnston and Norman Letlik (eds.),
The Law of the Sea and Ocean Industry; New Opportunities and Restraints,
1984.
"China and International Law: and Historical Perspectives", in International
Law and the Grotian Heritage, a Commemorative Colloquium Held at The
Hague on 8 April 1983, 1984.
"Grotius Works in China", ibid.
"Nuclear Deterrent and International Law", in the Proceedings of the Confer-
ence on Nuclear Weapons and the Law, Ottawa, 1987.
"Common Heritage of Mankind", in International Law in China, to be pub-
lished in 1990.
"The United Nations and International Law", ibid.
203
INTRODUCTORY REMARKS
This is a special course on International Law in China, treating

the development of the relations between China and international
law from the beginning to the present time and emphasizing the
special features of the relations.
Article 9 of the Statute of the International Court of Justice, in
dealing with the election of the judges of the Court, provides that,
in every election, the electors shall bear in mind that "in the body
as a whole the representation of the main forms of civilization and
the principal legal systems of the world should be assured". From
this provision, one can see that international law should represent
"the main forms of civilization" of the world.
China is a country with a history of 5,000 years ; it has its distinct
culture and legal system. To study its relations with international
law will be interesting and significant in illustrating how history
and culture of a country have impact on the position of that coun-
try in international law.
If account is taken of the international law in periods of Spring
and Autumn and Warring States in the Zhou Dynasty (722-221
B.C.), international law in China has a long history. The purpose
of this course is not to make a historical study. Its purpose is rather
to answer some questions concerning international law in China:
was there an international law in ancient China? What was the
position of China in the world when international law was non-
existent in China? How did international law function when it was
introduced into China? And, then, what is the attitude of China
toward international law since the establishment of the People's
Republic of China (PRC) in 1949.
As to the last question, no attempt is made here to give a full
account of the practice of the PRC in international law. Nor will
the concrete problems arising in the practice be given or analysed.
In studying the practice, it appears that there are some elements
which have constant effect on the PRC in its dealing with problems
of international law. These elements have apparently historical and
cultural colour and thus may be crucial in the study of the subject
of international law in China.
The course is therefore divided into two parts of five chapters.
204 Wang Tieya
The first part consists of two chapters, dealing separately with

international law in ancient China since the periods of Autumn and
Spring and Warring States until the opening up of China in 1840,
and in modern China, from 1840 to the establishment of the PRC
in 1949. The second part, consisting of three chapters, touches on
some aspects of the contemporary Chinese perspective of inter-
national law, including : the five Principles of Peaceful Coexistence,
the concept of sovereignty and the rule pacta sunt servanda
these being considered as constant elements in the attitude of the
PRC toward international law.
The whole course, it is hoped, will illustrate its main theme, that
is, the impact of history and culture on international law. Modern
international law has its origin in western civilization. It has, how-
ever, been expanding to the whole world. How international law can
be more effectively applied and developed in a multilateral world is
a subject worthy of intensive and extensive study.
205
CHAPTER I
INTERNATIONAL LAW IN ANCIENT CHINA
/. International Law in the Periods of Spring

and Autumn and Warring States
The problem of international law in ancient China is mainly
concerned with the periods of Spring and Autumn (722-476 B.C.)
and Warring States (476-221 B.C.) '. These appeared to be the only
periods in Chinese history before the introduction of modern inter-
national law into China in the 1860s, when the existence of interna-
tional law was possible.
Opinion differs as to whether there was international law in
ancient China. Nussbaum in his well-known work, A Concise History
of the Law of Nations, denied it. He asserted that historical events
and practices in ancient India and China "have revealed little that
could, even in the broader sense of the word, be considered as inter-
national law"2. Oppenheim also took a negative attitude that there
was no law of nations in antiquity, but he admitted that
"more or less frequent and constant contact of different
nations with one another could not exist without giving rise to
certain fairly consistent rules and usages to be observed with
regard to external relations3".
At the other extreme, Korovin claimed that "it is China, India,
Egypt and other ancient eastern States which-should be considered
the birthplace of International Law"4. Some scholars take the posi-
tion that though modern international law originated in Europe,
yet there were certain well-developed principles of interstate
conduct in ancient countries, such as China, India, Egypt and some
1. "Spring and Autumn" and "Warring States" were the latest periods of
the Zhou dynasty which was the earliest dynasty in Chinese recorded history,
beginning from the 11th century, probably in 1122 B.C., and ending in 221 B.C.
2. A. Nussbaum, A Concise History of the Law of Nations, new edition, New
York, 1954, p. 10.
3. L. Oppenheim, International Law, Vol. I, 8th ed. by H. Lauterpacht, Lon-
don, 1955, p. 376.
4. E. A. Korovin, in International Law, edited by the Institute of Law of the
Academy of Sciences of the USSR, translated into Chinese, Beijing, 1959, p. 23.
206 Wang Tieya
other Middle East countries, which were similar to those of modern

international law5.
It is interesting to note that the idea of the existence of interna-
tional law in ancient China comes from the work of an American
missionary and sinologist, William A. P. Martin6, who may be said
to be the first person to compare the rules of interstate relations in
the periods of Spring and Autumn and Warring States to those of
modern international law. Martin had an extensive knowledge of
Chinese history and he found records of the interstate relations of
those periods interesting and possible to give evidence for the exis-
tence of a rudimentary international law in ancient China.
In 1881 Martin wrote a paper entitled "Traces of International
Law in Ancient China", while visiting Europe, and read it before the
Congress of Orientalists held in Berlin. The paper became popular
and was translated into different languages in various countries7.
Martin was not the only person who drew attention to the period
of Spring and Autumn. Early in 1861, a Chinese scholar, Feng
5. For instance, George M. Abi-Saab pointed out that "it is now common
knowledge that there have been systems of international law in ancient China,
India, Greece and the Moslem Empire, among others. Once continuous forms of
contact between different communities are established, rules ordering these rela-
tions are bound to develop": "The Newly Independent States and the Rules of
International Law : an Outline", in Howard Law Journal, Vol. 8, 1962, p. 96.
6. W. A. P. Martin (1827-1916) came to China in 1850 as a missionary. He
had once been to Beijing in 1859, as an interpreter to John E. Ward, United
States Minister to China, at the exchange of ratifications of the Treaty of Tian-
jian. He was in Beijing again in 1863 and taught at Tongwen Guan (College of
Foreign Languages) from 1865 to 1902 and then at the Imperial College from
1902 to 1905. From 1911, he became again a missionary and died in Beijing in
1911. See Anonymous, "The Life and Work of the Late Dr. W. A. P. Martin",
in The Chinese Recorder, Vol. 48, No. 2, 1917.
7. The paper was written in Paris while Martin was visiting Europe, and was
read before the International Congress of Orientals in Berlin in 1881 {Verhand-
lungen des 5 internationalen Orientalisten Congresses, Berlin, 1881, Part II,
pp. 71-78). It appeared in French under the title "Les vestiges d'un droit internatio-
nal dans l'ancienne Chine" in the Revue de droit international et de lgislation
compare, vol. XIV, 1882, p. 227-242. The English version, under the title
"Traces of International Law in China", was published in The International
Review, Vol. 14, 1883, pp. 63-77, and reprinted in The Chinese Recorder,
No. 14, 1883, pp. 380-393. It was summarized by the Comte de Noidans under the
title "Le droit international dans 1'ancien empire chinois", published in Revue de
Belgique, vol. XLVII, 1884, p. 308-313. Martin reprinted his paper under the
amended title "International Law in Ancient China" in his Lore of Cathay, or
the Intellect of China, London, 1901. A Chinese version of the paper appeared
in China in 1884 under Martin's Chinese name Ding Weiliang and the Chinese
title, Public Law in Ancient China. It was included in The Papers of the Hanlin
Academy, 2nd series, Shanghai, 1894, and reprinted in The Compendium on
Western Politics (in Chinese), Vol. VII, 1897.
International Law in China 207
Guifen had suggested an analogy between the period of Spring and

Autumn and the contemporary world8, and by the 1890s more than
a dozen others, including scholars and officials, had made similar
observations9. Martin admitted in the conclusion of his paper :
"Chinese statesmen have pointed out the analogy of their
own country at that epoch with the political divisions of
modern Europe. In their records, they find usages, words, and
ideas, corresponding to the terms of our modern international
law;... 1 0 "
However, it was he who made the first systematic study and suc-
cinct presentation of this subject, which had much more influence
than others. Most of the books on international law which alluded
to international law in ancient China stemmed from his paper.
The purpose of Martin was not confined to an academic under-
taking. He has political and practical usefulness in view. He stated
quite clearly that by the fact that there were in Chinese history
"usages, words and ideas, corresponding to the terms of our
modern international law", the Chinese statesmen would be "more
disposed to accept the international code of Christendom, which, it
is not Utopian to believe, will one day become a bond of peace and
justice between all nations of the world"". He tried to prove that
international law was not a foreign creature contrary to the
Chinese "ti-zhi" (system) and induced the Chinese officialdom to
accept it. However, how far his effort had practical effect is a mat-
ter of conjecture. His contribution was rather in the academic field.
Inspired by his paper, several scholars, both Chinese and other,
made special studies on international law in ancient China and
more than a dozen works appeared, enriching the literature on the
historical development of international law in the world '2.
8. See Denis Twitchett and John K. Fairbank, The Cambridge History of

China, Vol. 11, Part 2, Cambridge, 1980, p. 189.
9. Ibid.
10. Martin, "International Law in Ancient China", supra note 7, p. 449.
11. Ibid.
12. The earliest Chinese works appear to be Lan Guanee, A Comparative
Exposition of the Period of Spring and Autumn and the Public Law and Liu
Renxi, The Inner Story of the Public Law During the Period of Spring and
Autumn, both in Chinese and published in the late Qing dynasty. More serious
work began with Zhang Xinzheng, International Public Law in the Period of
Spring and Autumn, published in Chinese, Beijing, 1924. It was followed by Siu
Tchoanpao, Le droit des gens et la chine antique, Partie I : Les Ides, Paris,
1926, o which the second part, The Traces of International Law in Ancient
208 Wang Tieya
China under the Zhou Dynasty (1000-221 B.C.) was a feudalistic

country governed by the King of Zhou. The feudal system was
elaborated when the dynasty was founded, which introduced five
orders of nobility, namely, dukes, marquis, earls, viscounts and
barons. Thousands of vassal states or principalities were created to
protect the reigning house and to facilitate the rule of the King.
Small states or principalities were considered as protectorates of
the larger ones and a couple of larger states had a great number of
small states or principalities dependent on them. As long as the
King was powerful, these states or principalities were in all respects
submissive to the imperial reign.
Upon King Ping's accession to the throne (770 B.C.), however,
the House of Zhou became weak and vassal states or principalities
became more and more powerful and more and more independent.
The small states or principalities were swallowed up one by one by
the larger ones. Of thousands of states or principalities, only 160
were left after 722 B.C. and of this number only 12 were of im-
portance. They ruled with their increasing military strength, paying no
regard to the decrees of the King. After moving to the east in 770
B.C., the House of Zhou existed in name only. The vassal states
acknowledged allegiance to the King only when it suited them.
Under the condition that the subordinate relations between the
King and the feudal lords lost their significance, mutual relations
among vassal states flourished. It was natural that practices and
usages emerged in response to their need in conducting intercourse.
Martin found the evidence of "a system of usages which might be
regarded as constituting for them a body of international law" '3.
China, was published in Chinese in Shanghai, 1931. The next important works
in Chinese were Chen Guyuan, The Origin of International Law in China,
Shanghai, 1931, and Hong Junpei, International Law in the Period of Spring
and Autumn, Shanghai, 1937. Hong (ibid.) found Ning Xiewan mentioning in
his Contemporary International Law, pp. 34-35, that a Chinese scholar in Ger-
many had written a book on the problem of the conformity of ancient China
with international law, but the book has not been found. Some articles in
English appeared in the academic journals : Cheng Tehsu, "International Law in
Early China", in the Chinese Social and Political Sciences Review, XI, 1927 ;
Roswell Britton, "Chinese Interstate Intercourse Before 700 B.C." in American
Journal of International Law (AJIL), Vol. 29, 1935; and Chen Shihtsai, "The
Equality of States in Ancient China", in the same Journal, Vol. 35, 1941. The
latest works in English were Richard Louis Walker, 77ie Multi-State System of
Ancient China, Connecticut, 1953 and Keishiro Iriye, "The Principles of Inter-
national Law in the Light of Confucian Doctrine" in Collected Courses, Vol.
120, 1967-1.
13. Martin, supra, note 10, p. 430.
Martin's paper was short and covered only a few fields of rela-
tions among the states in the period of Spring and Autumn. How-
ever, he found the following evidence : a family of nations carrying
on intercourse, both commercial and political; the interchange of
embassies, with a form of courtesy ; treaties solemnly drawn up and
deposited in a sacred place called Meng Fu ; a balance of power
studied and practised, leading to a combination to check the
aggressions of the strong and to protect the rights of the weak ; the
rights of neutrals to a certain extent recognized and respected ; and
finally, a class of men devoted to diplomacy as a professionl4. He
paid emphasis on the laws of war which he claimed existed during
the period : (1) in the conduct of war, the person and property of
non-combatants were required to be respected; (2) in legitimate
warfare, the rule was that an enemy was not to be attacked without
first sounding the drum, and was given time to prepare for defence ;
(3) a war was not to be undertaken without at least a decent pre-
text ; (4) a cause always recognized as just was the preservation of
the balance of power ; (5) the right of existence was in general held
sacred for the greater states which were held in fief from the
Throne ; (6) finally, the rights of neutrals were admitted and to
a certain extent respected '5.
It is not necessary to give here a full account of the interstate
relations and practices and usages which emerged therefrom during
the periods of Spring and Autumn and the Warring States, since
extensive study has been made by some scholars '6. To give some
illustrations will suffice.
1. Diplomacy. Diplomatic activities were most conspicuous
during these periods '7. As the central power lost its control, the
vassal states dealing with each other on a footing of equality en-
14. Ibid., pp. 428-443.

15. Ibid., pp. 443-448.
16. For the works of these scholars, see supra, note 12.
17. Martin has written an article "Diplomacy in Ancient China", published
in The Journal of the Peking Oriental Society, Nos. 3 and 4, reprinted in the
Papers of the Hanlin Academy, 2nd series and in Lore of Cathay, supra, note 7,
Ch. XXIII. See also Lei Haizong, "Diplomacy in Ancient China" (in Chinese),
Social Sciences, Vol. 3, No. 1, 1941. Lei pointed out that:
"The periods of Spring and Autumn and Warring States in ancient
China, altogether five hundred and fifty years, were in the stage of states
in which the art of diplomacy was much developed and the materials of
diplomatic history left over to later generations not less abundant than
those of Greece and Rome." {Ibid., p. 1.)
210 Wang Tieya
gaged in many and varied diplomatic activities. They included diplo-

matic notes or written reports sent from one court to another and
they were usually undertaken under such terms as "chao", a court
visit paid by one prince to another ; "hui", meetings of officials or
nobles of different states ; "pin", missions of friendly inquiries sent
by the prince of one state to another ; "shi", missionaries sent from
one state to another ; and "shou", hunting parties where the repre-
sentatives of different states combined business with pleasure,
etc.18 On occasions of great importance, the princes took up the
matters personally. More often, diplomatic activities were carried
on by special envoys. Sometimes they were messengers ; there were
also the ambassadors ". The envoys had no privileges of exterri-
toriality, but the sanctity of their person was, as a principle, fully
admitted. There were no permanent legations, but the frequency of
diplomatic exchanges provided almost the equivalent and the stay
of temporary envoys might be long enough to accomplish the pur-
pose of residential legations.
The art of diplomacy was much developed during these periods.
One of the outstanding diplomaticfigureswas Lu Zhong Lian who
had peacefully settled many important and complicated disputes
between states20. His success was so conspicuous that, down to
the present day, his name has become synonymous with a dispute-
settler. Other prominent diplomats known in history were Su Qin
and Zhang Yi21. The former had successfully made efforts to form
a defensive alliance of six states against Qin, the most powerful
state at that time the so-called "perpendicular alliance", while
the latter worked for Qin and succeeded in persuading the six states
to dissolve the perpendicular alliance and to form a "horizontal
alliance" in its place with the six states taking Qin as their superior.
Both Su Qin and Zhang Yi were considered among the immortals
in the field of diplomacy.
18. Walker, supra, note 12, p. 75.

19. Ibid., p. 76. The messengers were called, in Chinese, Xinren, who were
really diplomats, see Huang Baoshi, An Examination on the Xinren in Chinese
History (in Chinese), Taibei, 1953.
20. He was active in the period of Warring States, see Cheng, supra, note 12,
p. 54.
21. They were both active in the period of the Warring States from 333 B.C.
to 310 B.C. See Fu Qixue, Compilation of Historical Materials on Diplomatic
History of Ancient China (in Chinese), Taibei, 1978, Vol. 1, pp. 150-164; see
also Huang, supra, note 19, pp. 116-129.
2. Conferences. In the conducting of interstate activities, confer-

ences were often convened and participated in by the rulers of the
states or their representatives. The conferences were sometimes
called "Meng", the purpose of which was to settle disputes, to discuss
common affairs and, more usually, to organize the leagues of
states, which were also called "Meng", and the result of the con-
ference was sometimes again called "Meng", meaning the covenant
or pactM.
A conference or "Meng" appeared to be the most popular in-
stitution in the interstate relations in the periods of Spring and
Autumn and the Warring States. One of the most well-known
conferences was held in 540 B.C.23 Years before the convening of
the conference, there was a constant state of war which caused
dreadful sufferings for the people. This gave rise to a sentiment
against war and a cry "to stop the war of barons" a kind of
general peace movement. The movement led to the convening of a
conference for the purpose of disarmament and the establishment
of a league of all the states as a means for ending the war. The idea
came from a statesman of the state Song, Duke Xiang, who went
to various courts to make the proposal. The states had to approve
his idea and the scheme of convening a conference for that purpose
was generally accepted. The leaders of 14 large states assembled at
the capital of Song in 546 B.C. After long and heated debate, a
preliminary agreement wasfinallyreached and then a covenant was
signed, though the two most powerful states, Qin and Chi, declined
to sign on account of a dispute as to who should sign first.
Actually, the conference was a complete failure as it did not attain
its original aim of disarmament. On the contrary, the states con-
tinued to distrust each other and their armaments increased enor-
mously. But, the conference and its results were so well known in
history that nearly 2,500 years later when the League of Nations
was established at Versailles in 1919, the league of 546 B.C. was
noted and studied by western scholars as the "First League of
Nations"24. The analogy had been criticized, as the conference was
22. Walker, supra, note 12, p. 79.

23. Ibid., pp. 56-57. There was an interesting account of this conference in
G. G. Warren, "The First League of Nations", in The New China Review, Vol. I,
1919, pp. 356-367.
24. In addition to the article mentioned above, Warren had published a
French version, "Le Congrs de la paix en Chine en 546 avant J.-C", in Les
tudes, 1918, p. 77-82.
212 Wang Tieya
not composed of sovereign States, it did not set up any organization

and its aim was limited to disarmament. As far as disarmament
was concerned, a comparison with the Hague Conferences of 1899
and 1907 would probably have been more accurate25.
3. Treaties. In every society of States, treaties constitute the
important instruments in their mutual relations. China, in the
periods of Spring and Autumn and Warring States, was no excep-
tion. It is recorded that hundreds of treaties were concluded in
those periods26. They were bilateral or multilateral, dealing mainly
with political matters, including friendship, mutual aid, alliances
and leagues, etc. Their texts were always couched in brief language,
but usually contained three parts : the preamble, stating the pur-
pose of the treaty; the articles, setting forth the mutual obliga-
tions of the parties ; and the oath, providing in the last part of the
treaty that "the wrath of God will fall upon the state which vio-
lates this sacred agreement". Treaties were concluded with solemn
formalities, especially those signed by the rulers of the States per-
sonally26.
Shi Zhaoyin, a Chinese historian, had made a detailed study and
published an article, in which he adduced ample evidence to illus-
trate the practices and usuage of concluding treaties in that period,
covering nearly the whole field of the modern law of treaties27.
Basing himself on evidence, he discussed the following subjects : the
contracting parties ; contracting power ; forms of treaties ; formali-
ties of concluding treaties ; kinds of treaties ; interpretation of trea-
ties ; termination of treaties ; and sanction of treaties. It is particu-
larly interesting to note that the treaties were concluded most
solemnly and the oath recorded in treaties was formidable, yet
sometimes some other guarantees were provided for the enforce-
ment of treaty stipulations, like a bondage or exchange of hostages.
25. Evan Morgan, "A League of Nations in Ancient China", in Journal of the
North China Branch of the Royal Asiatic Society, Vol. LVII, 1926, pp. 50-56.
He would suggest, however, to compare the conference with the Hague con-
ferences of 1899 and 1907.
26. It had been estimated that more than 140 treaties were recorded in the
Spring and Autumn period, see Walker, supra, note 12, p. 82. See, generally,
Shi Zhaoyin, "Treaties in the Period of Spring and Autumn" (in Chinese), Social
Sciences, Vol. 11, 1931.
27. Martin gave an example of a treaty between the Prince of Jing and the
coalition of princes in 544 B.C., which contained a Preamble, eight articles and
a ratification oath, supra, note 10, pp. 440-441.
However, the most important sanction of treaties, it was commonly

acknowledged, was international good faith, which was considered
the basis of the validity of any international agreement.
There can be no doubt that there were practices and usages of
interstate relations in the periods of Spring and Autumn and War-
ring States. The problem remains: are they international law?
Taking international law in its modern sense, they can in no way be
its principles and rules. States in those periods were under a feudal
system and, though with some degree of independence, were not
sovereign States. It has been aptly pointed out that, in their rela-
tions, there was "inter but no nations"28. Such practices and
usages were not systematic in nature and had no connection at all
with the present principles and rules of international law. In the
case of China, the periods of Spring and Autumn and Warring
States came to an end in 221 B.C. when the whole country was
unified under the rule of Qin Emperor. Thenceforth, the interstate
practices and usages could not be possible and there were no traces
of international law until the middle of the nineteenth century.
Nevertheless, can these practices and usages not be called quasi-
international law, meaning something similar to international law?
Or, may they be described as rudimentary international law, an
analogue to that of the Greek cities29? These are questions which
international lawyers have to ponder. It is still significant to
remember the words of Hershey, which he wrote in 1926 in his
book review of S. Viswanatha's book, International Law in
Ancient India, that this book
"brings within our Western purview a considerable body of
knowledge which should tend to broaden our horizon and
make us realize that there is much that is not new under the
sun or exclusively European or Occidental30".
28. Chen Guyuan in the Preface to Hong, supra, note 12, p. 1. Iriye had a
similar opinion that there did not exist in ancient China an inter-state system
similar to "that of international law as we know it today", because "in ancient
China a feudal system, with distinctive legal and political characteristics, pre-
vailed". Supra, note 12, p. 5.
29. Britton, after making an extensive study of the interstate intercourse in
ancient China, reached the conclusion that: "During the pre-imperial era, inter-
course among the rulers of the independent units naturally had a customary
pattern, an Asiatic analogue to the rudimentary interstate law of the Greek city
states", supra, note 12, p. 616.
30. AJIL, Vol. 20, 1926, p. 426.
214 Wang Tieya
2. The Chinese Traditional World Order

The King of Qin conquered all the states and made China a
unified country in 221 B.C. The unification marked the first turn-
ing point in Chinese history. The title of Emperor was coined
the King of Qin designated himself the First Emperor
and the Empire formally established. China as a unity may be his-
torically dated to antiquity at least at the time when the prehistoric
Shang Dynasty was replaced by the Zhou Dynasty at the end of
the first millennium B.C. Even during the periods of Spring and
Autumn and Warring States, the Zhou Dynasty was retained
though nominally. But it was by the unification of the whole coun-
try by the King of Qin that the unity of China was confirmed.
Dynasties changed the Qin Dynasty lasted only 15 years and
was succeeded by the Han Dynasty in 206 B.C. but the Empire
persisted, though sometimes broken into fractions, each claiming to
control the whole country.
The dominant principle of all times was stated as follows :
"Under the whole heaven, there is no land that is not the
Emperor's, and within the sea-boundaries of the land, there is
none who is not a subject of the Emperor31."
The Empire was a comprehensive and indivisible whole which
could have no rival and also no equal to exist on earth, in theory at
least, it constituted a world order in which there were relations
among the participants, but no relations of independent states were
possible. In contrast to the periods of Spring and Autumn and
Warring States, in the long history of China, there was "a 'nation'
but no 'inter'"32. Therefore, there was no basis for the development
of any kind whatever of international law.
31. Book of Odes (in Chinese), Chap. II ; the translation was given in Imma-
nuel C. Y. Hsu, China's Entrance into the Family of Nations, Cambridge, 1986,
p. 6. James Legges' translation of these passages was somewhat different, which
was as follows :
"Where'er their arch the heavens expand,
The king can claim the land below.
Within the seabounds of the lands,
All at his summons come and go."
James Legge, The Chinese Classics, Vol. Ill, Part II, p. 360. Legge's translation
is less literal than Hsu's.
32. Chen in his Preface to Hong, supra, note 12, p. 1.
China had relations with its surrounding countries situated in the

region, which were separated by mountains, deserts and oceans
from the west and South Asia and formed a closed community.
Most of the countries in the region were small and weak ; they were
culturally influenced by China and politically subordinated to it
under a special pattern of relationships. They formed a loose com-
munity of nations under the leadership of China. This was what
was called a Sino-centric world order33.
The scope of the Chinese world order was flexible and not well
defined. The surrounding countries, which were junior members,
usually included : Korea, Liuchiu, Annam, Siam, Burma and other
peripheral countries in Southeast and Central Asia. It might some-
times extend to countries farther beyond this area when they were
willing to establish special relations with China and accepted the
status of junior members. Japan was sometimes, but not always,
included.
The basis of the Chinese world order was cultural, rather than
political. As the participant members had mostly inherited, in dif-
ferent degrees, Chinese culture, they form a cultural area which was
distinct from other great cultural areas of the world34. The re-
lationships between China and other countries in this world order
were not international in nature, but of ethical character : not using
the concepts of sovereignty and equality35, but developed according
to Confucian doctrine of benevolence and obedience based on
Three Bonds bonds of father and son, husband and wife, and
33. The most important contribution to the study of the Chinese World
Order is John King Fairbank (ed.), The Chinese World Order: Traditional
China's Foreign Relations, Cambridge, 1968, a collection of papers written by
various scholars on certain aspects of the Chinese world order. Fairbank said in
"A Preliminary Framework", ibid., p. 2, that:
"In the course of time, there grew up a network of Sino-foreign relations
that roughly corresponded in East Asia to the international order that grew
up in Europe, although, as we shall see, international or interstate do
not seem appropriate terms for it. We prefer to call it the Chinese world
order."
34. Ibid.
35. Fairbank pointed out that: "The traditional Chinese world order can
hardly be called international because the participants in it did not use concepts
corresponding to the Western ideas of nation, or sovereignty, or equality of
States, each having equal sovereignty." Ibid., p. 5. See also the view of Dantel
J. Hoffheimer, "China and the International Legal Order : An Historical Intro-
duction", in the Case Western Reserve Journal of International Law, Vol. 11,
p. 252.
216 Wang Tieya
prince and ministerx. The relations reflected the familial relations :

China acted like a parent and expected the surrounding countries
to respect and obey just like its children ". In essence, the Chinese
world order is an extension of Chinese culture.
However, it does not mean that all the participant members of
the Chinese world order were countries with Chinese culture. The
order developed and expanded. It was said to have contained three
main zones: (1) the Sinic Zone, consisting of the most nearby and
culturally similar countries ; (2) the Inner Asian Zone, consisting of
tribes and states of nomadic or semi-nomadic peoples of Inner
Asia, who were not only ethnically and culturally non-Chinese, but
were also outside or on the fringe of the Chinese culture area ; and
(3) the Outer Zone, consisting of the "Outer barbarians" generally,
at a further distance over land or sea38. However, the countries or
peoples of non-Chinese culture, while admitted to the Chinese
world order, were expected to take certain ritual forms based on
Chinese culture and had to pay homage to China as the cultural
ruler of the universe.
Neither does it mean that military force was not used in the re-
lations between China and its surrounding countries. Qian Lung, for
instance, was quite well known as an ambitious and warlike em-
peror. In his dynasty (1736-1796), several campaigns were undertaken
in Central Asia, from 1750 to 1760, and force was used also against
Burma (1776-1770) and Vietnam (1788-1790)39. The aim of using
force was to pacify these countries. In most cases, the countries
invaded would be left to an independent status in a special re-
lationship with China, rather than be annexed into the Chinese
domain. The special relationships established were again put on the
basis of ethical subordination.
One of the distinct features of the Chinese world order was
superiority and hierarchy40. It was not organized by territorial
36. Fairbank, supra, note 33, p. 6.

37. Hoffheimer, supra, note 35, p. 253. Hsu indicated that: "China, as the
Middle Kingdom, took the position of family head, and the smaller States on
her periphery Korea, Annam, Siam, Burma, and Japan for a time as-
sumed the position of junior members, paying hommage to her in the form of
periodic tribute." Supra, note 31, p. 3.
39. See, for instance, Gilbert Rozman, The Modernization of China, New
York, 1981, p. 25.
40. Wang Gungwu, "Early Ming Relations with Southeast Asia. A Back-
ground Essay", in Fairbank, supra, note 33, pp. 36-37. Lien-sheng Yang stated
sovereignties, nor was it one Empire only. It was composed of

China as a central power, occupying a superior position based on
cultural ascendancy, and dependent members, which were subordi-
nate in different degrees to the central power. China was thus
called the Middle Kingdom and in its spiritual sense was to embrace
the whole universe, called "All under the Heaven"41, while other
members of the world order were treated as subject peoples. The
relations were non-equalitarian. All the countries which desired
contact with the Middle Kingdom had to be submissive and
obedient ; they had to accept the inferior status of themselves and the
superior position of the Middle Kingdom. The dominant principle
was that of superiority, though at times it existed nominally only
and was not strictly observed. It might be said to become a myth
which was at most times backed by realities of a varying degree,
though sometimes approaching nil42.
The symbol of the Chinese world order was the Emperor at its
apex. The Emperor had two distinct personalities : one was that of
a human ruler, ruling the Middle Kingdom, with the title of
"Huang Di", the Emperor. At the same time, he was considered to
represent the whole universe, "All under the Heaven", and in this
personality, he styled himself "Tian Zi", the Son of Heaven, a son
in a holistic sense43. He possessed the mandate of heaven to oversee
the whole of humanity, both Chinese and barbarians. He was
supreme and omnicompetent. But his function was not purely poli-
tical, but essentially ethical. Relations between the Emperor and
the subordinate countries and peoples were based on "de", the vir-
tuous conduct, and "li", proper ceremony. The virtuous conduct of
the Emperor was believed to be able to attract the subordinate
countries and peoples to come voluntarily into contact with the
Middle Kingdom, while the proper ceremonies performed by the
in his article "Historical Notes on the Chinese World Order", in Fairbank,

supra, note 33, p. 20, that "The Chinese World Order is often described as
having a Sino-centric hierarchy. In theory, it should have been hierarchical in at
least three ways, China being internal, large and high and the barbarians being
external, small and low."
42. Yang, supra, note 40, p. 20 and Wang, supra, note 40, p. 36, where he
said that "At times it was clearly a myth, a sustaining and comforting myth, but
equally clearly at other times it was reality, a reality that nurtured cultural pride
but also called for moral restraint".
43. Mark Mancali, "The Ching Tribute System : An Interpretative Essay", in
Fairbank, supra, note 33, p. 64.
218 Wang Tieya
parties concerned would be expected to maintain order and har-

mony within the Chinese world order44. All these reciprocal re-
lations found expression in the historically emerged and developed
tribute system, which will be treated in the next section.
The concept of the Chinese world order a Sino-centric world
order lasted for centuries. It did not exclude altogether the idea
of other cultures or other civilized countries or peoples. For in-
stance, Rome was known in the Han Dynasty (206 B.C.-A.D. 220),
while India was honoured as the home of Buddhism in the Tang
Dynasty45. In addition to the term "barbarous state", there was
"foreign state" (wai guo), a term used since early times, to denote
countries and peoples far away and outside the circle of the Chi-
nese world order46. There was, however, no possibility of constant
contact and the relations were sporadic and could not be developed
consistently. As late as the end of the eighteenth century, England,
though its culture was reluctantly admitted, would not be treated as
equal. In the Imperial Edict to King George III of 1793, the
Emperor Qian Long stated very definitely that England could not be
admitted to his exclusive circle47.
The Chinese world order was a centrified and unified one. There
were some periods of instability when the Middle Kingdom disin-
tegrated into factions, treating each other as adversaries. At times,
when China was weak, it lost its control and relations with neigh-
bouring countries became abnormal in the Chinese view. History
records some treaties negotiated and concluded between China and
neighbouring countries or among the latter themselves48. But these

45. Yang, supra, note 40, p. 21.
46. Ibid.
47. The Edict said that :
"Moreover the territory under the control of the Celestial Court is very
large and wide. There are all well-established regulations governing tribu-
tary envoys from the outer states to Peking, giving them provisions (of
food, travelling expenses) by our posthouse and limiting their going and
coming. There has never been a precedent for letting them do whatever they
like. Now if you, O King, wish to have a representative in Peking, his
language will be unintelligible and his dress different from the regulations ;
there is no place to accommodate him . . ." (S. Y. Teng and J. K. Fairbank
(eds.), China's Response to the West: Documentary Survey 839-1923,
New York, 1963, Vol. l,p. 19.)
48. For instance, in the Song dynasty (960-1279), see Herbert Franke, "Trea-
ties between Song and Chin", in Franoise Aubin (ed.), Etudes Song: Sung
Studies in Memoriam Etienne Balazes, The Hague, 1970, p. 28.
were exceptional cases. No evidence of consistent practices or

usages evolving from these relations could be found. It can hardly
be said that any multilateral or dual-state systems ever existed. The
concept of a centrified and unified world was reinforced and re-
fined through different times until it was encroached upon by the
powerful West in the middle of the nineteenth century.
The result of such a concept was that China, for a long time, did
not conceive of itself as a State, still less as a nation State in the
modern Western sense49. It remained a cultural entity for a long
time and the world order was considered as an extension of
Chinese culture. This traditional concept made it hard for the Chinese
to understand the multi-State system of the western world on its
first contacts with the Europeans when its isolation was broken
forcefully. Consequently, for thousands of years, in the context of
Chinese traditional world order, no international law of any kind
could possibly exist50.
3. The Tribute System

The main manifestation of the Chinese traditional world order
was the tribute system51. Tribute is a term used from the early years
of the Zhou Dynasty. Originally, it was applied internally to the
relations between the supreme rulers and the feudal lords52. Gra-
dually it was extended to apply to relations with the "barbarians".
It became an important institution governing the relations with
states which were called tributary states. It developed through cen-
turies; it was elaborated and refined in the Ming Dynasty (1368-
1644) and inherited by the Qing Dynasty (1644-1711)53. It survived
49. Fairbank, supra, note 33, p. 5. See also Edwin O. Reischauer and
J. K. Fairbank, Asia: The Great Tradition, Boston, 1960, p. 672.
50. Suzanne Ogden reached the conclusion that "the concept of ius gentium,
human and voluntary law established by the consent of nations in their rela-
tionships, could not exist in the context of China's traditional system".
"Sovereignty and International Law: The Perspective of the PRC", in New
York University Journal of International Law", Vol. 7, p. 2.
51. J. K. Fairbank and S. Y. Teng have made an elaborate study on the
tribute system of the Qing dynasty in "On the Ching Tributary System", in
Harvard Journal of Asiatic Studies, Vol. 6, 1941. Mancali, op. cit., supra, note
43 and J. K. Fairbank, "Tributary Trade and China's Relations with the West",
in The Far Eastern Quarterly, Vol. I, 1941-1942.
52. Immanuel C. Y. Hsu, The Rise of Modern China, 2nd ed., New York,
1975, p. 182.
53. Fairbank and Teng, supra, note 51, p. 137.
220 Wang Tieya
even after 1840 when the Chinese world order began to be des-
troyed by the forces coming from the west. It only died a natural
death in 1911 when the Qing Dynasty collapsed and the Republic
of China was established M.
The tribute system was a comprehensive and complicated insti-
tution through which relations between the Chinese Empire and the
subordinate countries were established. Under the regulations of
the Qing Dynasty, the whole system contained the following main
elements: (1) an imperial patent appointment was bestowed upon
the ruler of a vassal state, recognizing his tributary status and an
official seal was granted for use in communication; (2) he was
given a noble title in the hierarchy of the Empire; (3) the
memorials and other communications were to be dated by the Chi-
nese calendar ; (4) memorials of various sorts had to be presented
to the Emperor on appropriate occasions according to the statutory
provisions ; (5) a symbolic tribute of local products should also be
presented ; (6) the tribute mission was escorted to the court by the
imperial post; (7) the tribute envoys performed the appropriate
ceremonies of the court, especially the "kotow" ; (8) the tribute mis-
sion received imperial gifts in return; (9) it was granted certain
privileges of trade at the frontiers and at the capital ". There were
some more detailed regulations in regard to, for instance, the fre-
quency and size of the tribute mission, its entry and departure, its
residence in the capital, and its conduct of trade, etc. x
The Chinese attached much importance to the ceremony of
"kotow". Kotow was applied in familial and social relations, but to
perform the kotow before the Emperor was the most solemn one.
54. The tribute system was displaced by the unequal treaty system as early as
the 1840s when the first unequal treaties were imposed upon China by foreign
powers. It did not die away suddenly, but, as indicated by Fairbank, it "petered
out slowly as the treaties gradually took hold", "The Early Treaty System in the
Chinese World Order", in Fairbank, supra, note 33, p. 258.
The last tributary mission was sent by Nepal in 1908 before the Chinese Revo-
lution of 1911, see F. K. Fairbank and S. Y. Teng, Ching Administration : Three
Studies, Cambridge, 1960, pp. 165-169. "The longevity of the system caused
foreign observers in China to comment that the former tributary states continue
to worship the shadow after the substance has departed." Gerrit W. Gong, The
Standard of "Civilization" in International Society, Oxford, 1984, p. 132.
55. Fairbank, supra, note 33, pp. 10-11. See also Fairbank and Teng, supra,
note 54, pp. 135-145, 163-173.
56. The tributary states in the early Qing dynasty and their expected fre-
quency and routes of tribute missions were given in the 1818 edition of the
Collected Statutes of Great Qing Empire, see Fairbank, supra, note 33, p. 11.
It consisted of three separate kneelings, each kneeling accompanied

by three separate prostrations. In the Chinese view, it was a kind of
rite expressing greetings to the Emperor and showing the good
manners of the tribute envoys which were necessary ". More im-
portantly, however, to perform kotow before the Emperor was an
act of surrender to him and his Empire. By this act, the supremacy
of the Emperor was acknowledged and the superior position of
the Middle Kingdom was accepted. It was not a mere form; it
was an essential part of the Chinese world order. When European
envoys came, they also were required to perform it as tribute
envoys. They objected and seriously considered that to do it was
to signify who was superior and who inferior in status. It was thus
to become the main obstacle in Chinese dealing with the "outer
barbarians"58.
In fact, the tribute system operated beneficially to both sides
the Emperor and the rulers of the tributary states ; the Empire and
the tributary states. On the side of the Emperor, he could see that,
by the tribute system, the Sino-centric world order was confirmed
and maintained and the superior status of the Middle Kingdom
was assured and he could also see that his rule would be safe with
the surrounding countries as an "outer-fence" to protect it from
barbarian attacks. The system had the main function of preserving
security and inviolability of China as a central power59. On the side
of the tributary states, they had more benefits. The rulers had by
the investiture of the Emperor their rule legitimized, and their pres-
tige raised before their peoples. Their countries were protected by
the Empire against foreign invasion and could ask for aid in time
of natural disasters. By the tribute, the tributary states got luxur-
ious gifts from the Emperor and, more importantly, they were
57. See Fairbank and Teng, supra, note 51, pp. 138-139; Fairbank, supra,
note 51, p. 135 ; and Gong, supra, note 54, p. 132.
58. The British official mission under Lord Macartney in 1793 failed com-
pletely due partly to his refusal to perform kotow before the Chinese Emperor.
See A. B. Morse, The International Relations of the Chinese Empire, London,
1910, Vol. 1, pp. 54-55. "Macartney was unwilling to kowtow because to do so
would indicate subordination not only of his government but also of his race,
his culture, and his country all as proud and powerful as China", Gong,
supra, note 51, pp. 133, 137.
59. T. F. Tsiang emphasized the security side of the Chinese tributary system
in his article "China and European Expansion", Politica, Vol. 2, No. 5, pp. 1-18.
According to Fairbank, the important thing to the rulers of China "was the
moral value of tribute", supra, note 51, p. 139.
222 Wang Tieya
allowed to conduct profitable trade with the Middle Kingdom60.

The tributary relations also strengthened the cultural relations be-
tween both sides61.
Thus, the tribute system had both political and economic func-
tions 62. The principal purpose of the Chinese was not for conquest
and dominion, but for defence and security. To pay tribute to the
imperial court meant the submission of the tributaries and the
concretization of the concept of the Chinese world order. It also
showed the grandeur of the dynasty to the satisfaction of the
Emperor. On the other hand the tributary rulers needed his recog-
nition and protection, but their motive lay rather in trade. The
presentation of the tribute was itself a kind of economic exchange
tribute and gift exchange, but the imperial gifts in return were
usually more valuable than the tribute presented. In presentation of
the tribute, the privileges were usually granted to the tribute envoy
who was accompanied by the barbarian merchants for conducting
trade at the frontiers and at the capital. The tribute may be said to
be a cloak for trade and tributary relations became commercial
relations63. It gave real economic value to the tributary states and
for the Chinese was a means to keep them in their state of
submission.
It can be said that the tribute system as a whole formed a frame-
work within which all sorts of interests, personal and imperial,
political and economic, military and cultural, found expression. It
was within this framework that the international relations of China
were conducted. Or, to say more accurately, in the Chinese mind,
all types of foreign intercourse had to be fitted into such a
framework M.
. Not only foreign envoys were treated as tribute envoys, but Chi-
nese envoys sent abroad at different times were also included in the
tribute system, no matter what real purpose they had. The famous
60. According to Fairbank, the important thing for the barbarians "was the
material value of trade", ibid. See also Fairbank and Teng, supra, note 51,
pp. 140-141.
61. Hsu, supra, note 52, p. 184.
62. Ibid., p. 182.
63. Fairbank, supra, note 51, p. 137. He asserted that the motivation of the
tributary relations "seems clearly to lie in trade, so much so that the whole
institution, viewed from abroad, appears to have been an ingenious vehicle for
commerce". Ibid.
64. Fairbank and Teng, supra, note 51, p. 141.
envoy, Zhang Qian, was sent to the "Western Regions" in the years
138-126 B.C. for the purpose of negotiating an alliance with them
against the Huns65. However, what was only made known was to
confer the imperial seal and to give recognition upon the vassal
rulers. Much better known was the expedition of Zheng He of
the Ming Dynasty. Between 1403 and 1433, seven imperial expedi-
tions under him were despatched into the waters of southeastern
Asia and the Indian Ocean. As many as 60 vessels and 27,000 men
were included at a time. The ports of call of some 40 states were
included *. The expeditionary forces were immense, but they were
not for conquest or war. Nor were they sent for diplomatic or
commercial purposes. It has been said that various reasons could
be contributed to such adventures: the search for treasure, the
show of power and wealth, the personal vanity of the Emperor, his
greed for glory, the motive of imperial expansion, etc., but no
single reason is adequate to explain it. However, the fact is that,
among the 40 states, most had sent back envoys with the Chinese
fleet and became enrolled as tributary states67. The immediate
achievement of the seven expeditions which were sent without
forewarning and withdrawn without regret was to bring a large
number of the tributary states into the Chinese world order68.
The tribute system was on the whole successfully applied and
expanded during the Ming and Qing Dynasties. To meet the need
of tributary relations, some organs were set up. During the Ming
Dynasty, it was the Reception Department of the Board of Rites
which supervised the relations with the tributary states, although
the Board of War was entrusted to manage those with certain
tribes of aboriginesm. This way of dealing with tributary states was
refined during the Qing Dynasty. Li Fan Yuan, the Barbarian
Control Office, was established, which originated in the relations
with the Mongols, and later expanded to conduct relations with the
"barbarians", and became an integral part of the tribute system69.
There were then two main offices in the tribute system : the Board
65. Fairbank, supra, note 51, p. 136. For the activities of Zhang Qian, see Fu,
supra, note 21, pp. 372-376.
66. Wang, supra, note 40, pp. 53-54; Fairbank, supra, pp. 140-142; Fu,
supra, note 21, pp. 1378-1386. A thorough study of Zheng He's expedition is in
Zheng Hesheng, Collected Accounts of Zheng He (in Chinese), Shanghai, 1948.
68. Ibid.
69. Hsu, supra, note 31, pp. 13-14.
224 Wang Tieya
of Rites and the Li Fan Yuan70. When relations with the tributary-
states became standardized, some other offices were involved in the
ritual procedure of tribute : Hui-tong Guan, providing the residence
for tribute envoys ; Guang-Lu Si, arranging court banquets ; Hung-
Lu Si, supervising the state ceremonials; and even the Board of
War was included with the task of escorting the tribute envoys to
the frontiers71. It was only after the Opium War of 1840 that some
new mechanisms were needed to deal with the western barbarians
from over the seas. In 1861, the "Tsungli Yamen", the Office for
General Administration of Affairs of Various Countries, was estab-
lished, which was an equivalent to the Ministry of Foreign Affairs
and which was transformed into a Ministry of Foreign Affairs
(Wai-wu bu) as provided in the Final Protocol of 1901n.
The success of the tribute system as evidenced by its longevity,
was due to the fact that on the one hand it was not a system based
on force, the force being used only in exceptional cases, and the
Chinese adopted consistently the policy of non-intervention and
non-governance. On the other hand, it could accommodate the
various interests of both sides : China, the Middle Kingdom, and its
surrounding countries, as the tributary states. The latter had to
accept the inferior status, as they were small and weak, yet they
were satisfied in that they were the main beneficiaries in various
fields political, economic and cultural. The system had accord-
ingly the capability of developing and extending. Relatively speak-
ing, it worked quite well. In the Ming Dynasty, it had at one time
extended to cover "over 30 new countries"73. During the Qing
Dynasty, the Collected Statutes provided that the following coun-
tries sent tributary missions to China regularly: Korea, Luichiu,
Annam, Siam, Sulu, Lao, Burma and Holland74. They were all
treated as tributary states but different countries received different
70. Hsu, supra, note 31, pp. 13-14.

71. See generally, Chen Tiqiang, China's Administration of Foreign Affairs
(in Chinese), Chongqing, 1943, Ch. 1.
72. Ibid. For the Tsungli Yamen, see Zhang Zhongfu, "The Origin of the
Tsungli Yamen" (in Chinese), in Foreign Affairs, Vol. 3, No. 1, 1933, and Banno
Masataka, China and the West, 1858-1861, The Origin of the Tsungli Yamen,
Cambridge, 1964.
73. Wang, supra, note 40, p. 59. In the early fifteenth century, the official
Ming list of tributaries included Japan, the Philippines, Cambodia, Java,
Pahang on the Malay peninsular and Achim and Samudra on the Island of
Sumatra. Fairbank, supra, note 51, p. J 41.
74. Fairbank, supra, note 33, p. 11. "Table 1. Ching Tributaries as of 1818."
treatment ; they were graded in order by the frequency with which

they were permitted to send missions to China. For instance, Korea
came the first to send a mission annually, while Burma was per-
mitted to send one every ten years.
The tribute system in modified form and changed implication
continued to exist even when the Chinese traditional world order
was encroached upon and began to collapse. Korea sent a tribute
mission as late as 1894 and the last tribute mission to China was
sent by Nepal in 190875. After all, however, the tribute system was
an antiquated institution. It could not stand against the thrust of
force coming from the West, especially when China was weak and
corrupt. It was destined to perish.
75. Fairbank and Teng, supra, note 51, pp. 165-169.

226
CHAPTER II
INTERNATIONAL LAW IN MODERN CHINA
1. The Introduction of International Law into China

Modern international law was systematically and formally intro-
duced into China in the middle of the nineteenth century, nearly 20
years after the forced opening of China by the Western powers.
However, the Chinese had begun to have contact with it as early as
the middle of the seventeenth century.
The first contact may be said to have happened in Qing's re-
lations with the Dutch in 1662-169076. The Dutch sought to reach
agreements with China and expected to conduct formal negotia-
tions with Qing officials. In their discussions the Dutch insisted on
the immunity of envoys from detention or arrest and often referred
to the "law of all nations" and the "customs of all princes". These
were of course entirely unknown to the Chinese and could not be
accepted by them77. The Qing officials were not impressed by the
concept of a community of equal States adhering to a common
code for intercourse. They clung to their own customs and made
efforts to preserve the Chinese world order and the traditional tri-
butary relations.
Some scholars claimed that, even earlier, attempts had been made
to introduce international law into China. It has been pointed
out that, sometime around 1648, Father Martin had started to
translate the work of Suarez on international law into Chinese78. It
was quite possible. The Jesuits in China knew something about
international law, especially the work of Suarez, who, as a precur-
sor of international law, has made an important contribution to it.
76. John E. Willis, Jr., "Ching's Relations with the Dutch, 1662-1690", in
Fairbank, supra, note 33, p. 248.
77. Ibid., pp. 248-249. The Dutch, when referring to international law, might
have in mind Hugo Grotius' "Law of War and Peace" which appeared in 1625,
but there was no indication of it.
78. Louis Pfister, S.J., Notices biographiques et bibliographiques sur les
jsuites de l'ancienne mission de la Chine, 1552-1773, Shanghai, 1932, p. 262,
n. 13 : see Joseph Sebes, S.J., The Jesuits and the Sino-Russian Treaty of Ner-
chinsk (1689) The Diary of Thomas Pereira, S.J., Rome, 1961, p. 117.
Some of them had even studied at the University of Corinbra

where Suarez had been teaching79. However, the text of the trans-
lation had not been kept and there was no record indicating upon
what conditions the translation was made and how far it had been
done. Anyway, it had no effect whatever on the Chinese.
More significant is the case relating to the Treaty of Nerchinsk,
168980. This treaty between China and Russia was the first modern
treaty concluded by China with foreign countries. The condition
under which the treaty was negotiated and concluded was that the
Emperor Kang Xi wanted to enter into a treaty relation with Rus-
sia for the purpose of strictly binding upon her and safeguarding
the Chinese border aginst external attack. He made concessions by
giving up the Chinese traditional attitude of treating Russians as
tributaries. Delegations were sent out to the territories of the Empire
with two Jesuits, Pereira and Gerbillon, as interpreters and advi-
sors, the aim being the conclusion of a binding treaty on the basis
of equality and reciprocity81. From the Diary of Pereira82, it can be
seen that equality and reciprocity were mentioned as essential prin-
ciples of the law of nations, making sure that everything was done
in accordance with international law ". The result was that not only
the treaty was equal in its content, but in every respect, namely,
writing, signing, sealing and exchanging of the treaty. International
practices of that time were scrupulously followed, even the Latin
language was adopted in the official text of the treaty84. Practically,
the influence of the rules of international law was strong. It does
not mean, however, that the Emperor Kang Xi accepted interna-
tional law to displace his concept of world order. He had no inten-
tion of setting the Treaty of Nerchinsk as a precedent for his
future conduct of foreign relations in general and that of treaty
making in particular. As a matter of fact, no mention of interna-
79. Ibid.
80. For the Chinese text of the treaty, see Wang Tieya (ed.), A Comprehen-
sive Compilation of Sino-Foreign Treaties and Agreements, 1689-1949, 3 vols,
(in Chinese), Beijing, 1952-1962, Vol. I, pp. 1-14; for the Latin and Russian
texts, see The Vlaritime Customs, Treaties, Conventions, etc., between China
and Foreign States, 2nd ed., Shanghai, 2 vols., Vol. 1, pp. 8-17.
81. Sebes, supra, note 78, p. 119. According to Sebes, the Diary showed that
the role of Pereira was to make sure that everything was done in accordance
with the principles of international law.
82. For the original Portuguese text and an English translation of the Diary
of Thomas Pereira, S.J., see ibid., pp. 171-303.
83. Ibid., p. 119.
84. Ibid.
228 Wang Tieya
tional law was made in either official or unofficial sources during

the 150 years from 1689 to 1839.
In 1839, when the Qing Dynasty was facing the serious problem
of opium, Lin Ze-xu was appointed and sent by the Emperor as an
Imperial Commissioner to deal with the problem. Under the motto
that "know the enemy and know yourself, and you can fight a
hundred battles with no danger of defeat", Lin came to Canton in
an attempt to acquire knowledge about the barbarians and of using
it as an instrument in his opium suppression and to stop British
traders in Canton from importing opium. He found it in interna-
tional law85. An authoritative work on international law, Vattel's Le
Droit des Gens, probably its English translation, was made known
to him, possibly by Yuan Dehui, an interpreter on his staff86. He
became interested in some passages of the book and asked, through
the hong-merchant, Dr. Peter Parker, an American medical mis-
sionary at that time, to translate them for him87.
Yuan Dehui had studied Latin at the Roman Catholic School in
Perang and had been a student at the Anglo-Chinese College in
Malacca. He had worked in the Li Fan Yuan as an interpreter and
was several times sent to Canton to buy foreign books. Probably,
in 1838, he was temporarily placed on the staff of the Imperial
Commissioner88. Peter Parker, an American medical missionary,
was active in his work, both missionary and medical, after he came
to Canton in 1834. He had good relations with the Chinese hong-
merchants and through them made some indirect contacts with
Commissioner Lin in 183989. In a letter to Lin, he suggested that
85. See, generally, Wang Weijian, "A Brief Investigation on Lin Zexu's
Translation of Western Writings on International Law" (in Chinese), in Journal
of Zhongsan University, 1985, No. 1, pp. 58-67 and Hsu, supra, note 31,
pp. 121-131.
86. From the Chinese text, it can be seen that the translation was not from
the original French work, but from its English translation, which had, before
1839, two English editions of 1833 and 1835 and two American editions of 1835
and 1839. See Wan, supra, note 85, p. 63.
87. Parker described his relationships with Lin and the latter's request for
translation of some passages in Vattel's Droit des gens in his report which
appeared in The Chinese Repository, Vol. VIII, 1840, pp. 634-637, which was
quoted in Chang Hsi-tung, "The Earliest Phase of the Introduction of Western
Political Science into China", Yenching Journal of Social Studies, Vol. 5, No. 1,
1950, pp. 11-13.
88. Wang, supra, note 85.
89. In 1844, Parker participated in the negotiations of the Sino-American
Treaty of 1844, the first treaty between China and the United States. From 1855
to 1857, he was the United States Minister to China.
China should be provided with proper knowledge of foreign coun-

tries, including laws and usages, and should conclude amiable
treaties with them to preserve friendship and peace90. The letter might
have had influence on Lin's decision to translate certain passages of
Vattel's work and to ask Parker to undertake that work.
The translations appeared in the well-known book entitled Hai
Guo Tu Zhi (An Illustrated Gazetteer of Maritime Countries) by
Wei Yuan, a scholar in the group of Lin's aides, who collected the
material translated and edited it for the use of the Imperial Com-
missioner91. Vattel's work was rendered as Geguo Luli (Laws and
Regulations of All Nations) and the passages translated, consti-
tuting Zhang 83 of Wei Yuan's book, related to war and its accom-
panying hostile measures, as blockades, embargoes, etc. These pas-
sages were not literally translated, but paraphrased. There was
confusion in the titles and contents of the passages. The notes of
the English translator were included as Vattel's version and even
Parker's own comment was added to it. As Parker's translation
was poor, and some paragraphs were almost unintelligible, Yuan
Dehui was asked to retranslate them. He himself purposely added a
new and important one which concerned the need to bring the
conflict to the foreign ruler before the local ruler took action him-
self. But, Yuan's translation was also not literal and was not
smooth for reading92.
Anyhow, the passages from Vattel's work had influenced Com-
missioner Lin in taking his action. These passages had obviously
been consulted when he declared opium as contraband and
demanded the surrender of it to be destroyed and burnt. In that
year he sent a letter to Queen Victoria, which, though couched in
the traditional tributary terms, indicated that a reference to Vattel's
work was made. The letter pointed out the deleterious effect of the
opium on the local population and urged the Queen to stop the
trade. Lin said in his letter :
"I have heard that smoking of opium is very strictly forbid-
den by your country; that is because the harm caused by
opium is clearly understood. Since it is not permitted to do
90. Wang, supra, note 85, p. 59.

91. Chang, supra, note 87, p. 13.
92. As to the translations of Parker and Yuan, see Wang, supra, note 85,
pp. 64-65.
230 Wang Tieya
harm to your own country, then even less should you let it be
passed on to the harm of other countries how much less to
Chinese."
He asked :
"Suppose a man of another country comes to England to
trade, he still has to obey the English law, how much more
should he obey in China the laws of the Celestial Empire ?"
Then he concluded :
"The barbarian merchants of your country, if they wish to
do business for a prolonged period, are required to obey our
statutes respectfully and to cut off permanently the source of
opium93."
This letter has never been acknowledged by the English side. It had
practically no impact on the course of events. Hostilities broke out,
leading to the Opium War and Lin was removed from his post in
1840. The interest in international law vanished. For more than 20
years, international law was not heard of.
The formal and systematic introduction of international law was
made in the 1860s when Henry Wheaton's Elements of Internatio-
nal Law was translated by W. A. P. Martin and published by the
Tsungli Yamen. This is another and important contribution which
Martin made to the development of international law in China94.
Before Martin's translation, Robert Hart, chief assistant to the
Inspector-General of the Chinese Customs (later on, he himself
became the Inspector-General), had translated 24 sections on the
rights of legations from Wheaton's book (Chapter One of Part III)
for the use of the Tsungli Yamen for the purpose of persuading the
Court to send diplomatic representatives abroad95. He did not
93. For the letter, see Fairbank and Teng, supra, note 47, pp. 24-25.
94. See, generally, Hsu, supra, note 31, pp. 125-131 ; Wang Weijian, "Dagu-
kou Incident between Prussia and Denmark and the Introduction of Western
International Law into China" (in Chinese), in Academic Studies, 1985, No. 5,
pp. 84-90; T. F. Tsiang, "Bismarck and International Law in China", in The
Chinese Social and Political Sciences Review, Vol. 15, No. 1, 1931, pp. 98-101.
95. Robert Hart, "Note on Chinese Matters", in Frederick W. Williams,
Anson Burlingame and the First Chinese Mission to Foreign Powers, New
York, 1912, p. 285; see Hsu, supra, note 31, p. 126. Hart's translation has not
been preserved.
attempt to undertake the work of translating the whole book.

When he learned Martin had started the translation, he encouraged
Martin to do it.
Martin had served as a Chinese interpreter to the United States
Ministers to China, W. B. Reed and J. Ward, participating in the
signing and exchange of ratifications of the Sino-United States
Treaty of Tianjin in 1858 and 1859. His idea of translating a book
on international law to meet the need of the Chinese in dealing
with foreign affairs began in 1862 when he was in Shanghai96. He
was first inclined to translate Vattel's Droit des Gens, which had, as
mentioned above, been translated in small parts into Chinese. But
he found Vattel "somewhat out of date" and was advised by
J. Ward to take Wheaton's book which, he mentioned, "besides the
advantage of bringing the science down to a very recent day, is
generally recognized as a full and impartial digest, and as such has
found its way into all the Cabinets of Europe"97.
Coincidentally, the Tsungli Yamen had also the idea of trans-
lating a book on international law for reference in the summer of
1863 when there were difficulties with the French. The American
Minister Anson Burlingame was asked to recommend an authorita-
tive work on international law that was generally recognized by
Western nations98. Burlingame also suggested Wheaton and pro-
mised to have it translated. He found that Martin was translating.
He encouraged Martin to continue the work and gave him his full
support99. The manuscript was presented to the prominent Chinese
officials who praised it for "its adaptation to the wants of China in
her new relations"100.
Burlingame arranged for Martin, who came to Peking in 1863,
an interview in the Tsungli Yamen with the ministers. The ministers
were much impressed by the manuscript and found it useful "". But
the translation was not smooth and satisfactory; they could not
96. W. A, P. Martin, A Cycle of Cathay, 2nd ed., New York, 1897, pp.
221-223.
97. William v. Kellen, Henri Wheaton, An Appreciation, Boston, 1902,
pp. 40-41, quoted in Hsu, supra, note 31, p. 127.
98. See Wanj>, supra, note 94, p. 85, where he quoted a passage in the des-
patch from Burlingame to the United States Secretary of State, 25 April 1865.
99. ibid.
100. Hsu, supra, note 31, p. 127.
101. The Chinese ministers found that the contents of this foreign book did
not agree with the system of China, but there were occasional passages which
were useful.
232 Wang Tieya
"clearly understand it unless it is explained in person" '2. Martin's

request for Chinese corrections and revision was complied with and
an agreement reached to assign four secretaries of the Yamen to do
the work to render it in good classical style, readable by the
Chinese. After half a year's collective effort, the work was com-
pleted and published in the winter of 1864. Three hundred copies
were distributed to the provinces for the use of the local officials103.
The translation was entitled Wanguo Gongfa, meaning Public
Law of All Nations. Martin explained that "it is commonly used in
various nations and is not a monopoly of any single State. More-
over, it is like the laws and regulations of various countries, hence it
is called Wanguo Luir, meaning Laws and Regulations of All
Nations1M, while Dong Xun, the chairman of the Board of War
and a minister of the Tsungli Yamen, stated in his Preface to the
translation that :
"Nowadays, there are many nations outside China. If there

is no law to regulate them, how are nations possible ? This is
why Missionary Martin has translated the Laws and Regula-
tions of All Nations105."
The impression the Chinese got was that "it generally deals with
alliances, laws of war, and other things. Particularly it has laws on
the outbreak of war and the check and balance between States".
The reason for emphasizing the laws of war in Wheaton's book
was that a diplomatic incident arose involving the war between
Prussia and Denmark of 1864 which furnished an opportunity for
the Tsungli Yamen to apply those rvlant parts of international
law contained in Martin's translationl06. The new Prussian minister
came to China in a man-of-war in the spring of that year. He met
three Danish merchant ships off Dagukou and seized them as war
prizes. The Tsungli Yamen protested on the main ground that the
area of water where the seizure took place was China's "inner

103. The memorial of the Tsungli Yumen to the Court, 30 August 1864 (in
Chinese), in Beginning and End of the Management of Barbarian Affairs, Tong-
zhi Period, Vol. XXVII, pp. 25-26.
104. Martin's Foreword (in Chinese), in W. A. P. Martin, Public Law of All
Nations, Beijing, 1864, Vol. 1, p. 1.
105. Dong Xun's Preface (in Chinese), ibid., Vol. 1, p. 1.
106. Wang, supra, note 94 and Tsiang, supra, note 94.
ocean", meaning territorial waters. In its memorial to the court, it

explained that :
"Foreign countries have the view that oceans and seas over
10 li [one marine league] from the coast, where it is beyond
the reach of guns and cannons, are common area of all coun-
tries. [The ship of] any country may come and go, stay in that
area at willl07."
The Yamen insisted the place of seizure was "inner ocean" under
China's exclusive jurisdiction and declared in its note to the Prus-
sian minister that any foreign country which detained vessels of
other countries in the Chinese ocean was in obvious violation of
China's rights. It stressed further that the detention in China's ocean
by any country, in hostility with any other country, was an act
"despising China" and the Chinese reaction was "not for Denmark,
but to preserve China's rights"l08. Under the pressure of the protest
based on principles of international law and the threat that the
Prussian minister would not be received by the Qing court, Prussia
released the two Danish ships and paid compensation of $1,500
for the third. The incident then ended peacefullyl09.
The Tsungli Yamen applied the principles of international law
in arguing with the Prussians, not openly but covertly. They were
cautious in acceding to the demand of Burlingame and Martin that
China should act according to Wheaton and "told them at once
that China had her own institutions and systems, and did not feel
free to consult foreign books"110. In addition to the principles of
international law they rather preferred on basing treaty provisions
to support their argument, stating that :
"The various oceans under China's jurisdiction have, as a
rule, been specifically stipulated in all her peace treaties with
the foreign nations, and in the peace treaty with your nation,
there is such a term as 'Chinese ocean'. You know this more
clearly than any other country and how can you say it is
beyond your comprehension '" ?"
107. Beginning and End, supra, note 103, Vol. XXVI, p. 30.
108. Ibid., p. 30.
109. Ibid., p. 31.
110. Ibid., p. 33.
111. Ibid.
234 Wang Tieya
The fact that the first application of international law led to the
successful conclusion of a diplomatic conflict which might have
become a serious event convinced the high officials of the Tsungli
Yamen that international law was useful. The memorial to the
court stated that :
"We, your ministers, find that although this book on
foreign laws and regulations is not basically in complete
agreement with the Chinese systems, it nevertheless contains
sporadic passages which are useful. For instance, in connec-
tion with Prussia's detention of Danish ships in Tianjin har-
bour this year, your ministers covertly used some statements
from that law book in arguing with him [the Prussian minis-
ter]. Thereby, the Prussian minister acknowledged his mistake
and bowed his head without further contention. This seems to
be proof [of its usefulness] "2."
The court therefore approved the publication of Martin's text of
the translation and its distribution.
The publication of the Wanguo Gongfa and the formal and sys-
tematic introduction of international law into China had been
regarded as a great event in Chinese history113. The immediate re-
sponse of it was, however, not encouraging. The Chinese were half
believing, half-doubting. They did not believe in international law
as principles and rules governing relations between States. Its use-
fulness lies only in being one of a few methods of "controlling
and bridling the consuls""4. Or, it has been said that Wheaton's
112. Beginning and End, supra, note 103, Vol. XXVI, pp. 25-26.
113. Martin's translation had much influence in Japan.
"More than two hundred years ago, Japan borrowed Chinese laws
almost wholesale. Now again, she imported international law first, not
directly from its original home of production, but indirectly from its re-
exporting country. It was indeed through the medium of the Chinese litera-
ture of international law translated by Martin that the Japanese statesmen
and savants at the last phase of the Takugawa rgime conceived for the first
time the occidental principles of the law of nations. Whatever the merits of
Martin's translation might be, his distinguished contribution to the ad-
vancement of the ideas of international law among statesmen and students
of the two countries in the Far East could not be ignored, and his name will
exist forever in the history of the law of nations in the Orient." (J. Shinobu,
"Vicissitudes of International Law in the Modern History of Japan", in The
Journal of International Law and Diplomacy, Vol. L, No. 2, 1951, p. 6.)
See also Hirohiko Otsuda, "Japan's Early Encounter With the Concept of the
'Law of Nations'", The Japanese Annual of International Law, No. 13, 1969.
114. Beginning and End, supra, note 103, Vol. XXXVII, p. 26.
book "can serve as a useful aid to China in planning border

defence""5. Tong Xun was, however, criticized for "ingratiating
himself with the barbarians by writing a foreword and publishing a
book for them""6. International law was, after all, foreign to the
Chinese, incompatible with Chinese "institutions and systems"
(tizhi). The adoption of it meant to them the abandonment of the
Chinese world order and the destruction of the tributary system. It
was suspected as a trap, "as the Trojans did with the gifts of the
Greeks". Moderates were attacked by diehards as "sinners against
the Confucian heritage""7.
On the foreign side, there was also difference of opinions. Mar-
tin's work had been fully encouraged and supported by Burlingame
and Hart"8. It had been hoped that "the work would do good by
showing the Chinese that the nations of the West have principles by
which they are guided, and that force is not their only law""9. It
would be in the interests of Western powers that China became
subject to the obligations of international law. Some were rather
sceptical, however, and they were concerned over the possible effect
on the treaty rgime set up in China. The acquaintanceship with
international law would, as indicated by the American charg
d'affaires, probably lead the Chinese
"to endeavor to apply its usages and principles to their inter-
course with foreign countries. This will gradually lead them to
see how greatly the principles of extraterritoriality contained
in their treaties with those countries modifies the usages in
force between the Western and Christian powers m."
Some took a basic hostile attitude and condemned the introduction
of international law into China. It is well known that the French
charg d'affaires shouted to Burhngame : "Who is this man who is
going to give the Chinese insight into European international law?
115. Zhang Sigui's Preface (in Chinese) in Public Law of All Nations, supra,
note 7, p. 3.
116. Quoted in Hsu, supra, note 31, p. 135.
117. See Jerome Cohen, "China's Attitudes Towards International Law
and Our Own", in Jerome A. Cohen, Contemporary Chinese Law, Cambridge,
1970, p. 283.
118. Martin himself even wrote that: "I am not sure it will not stand second
in influence to the translation of the Bible!", quoted in Hsu, supra, note 31,
p. 136.
119. Quoted in ibid., p. 137.
120. Quoted in ibid, p. 136.
236 Wang Tieya
Kill him choke him off; he will make us endless trouble '2I." On
the whole, Martin's work was responded to with mixed feelings
which an editorial in an influential Shanghai paper, North China
Herald, indicated as follows :
"Whether we are supplying weapons which may at some
future period be directed against ourselves, or which will only
be turned to the acquisition of new conquests, cannot at
present be decided. To stem the stream while it is still near its
source, and guide it into proper channels should now be our
aim'22."
Following Wheaton's Elements of International Law, Martin
translated, or with the assistance of his students, several other
works of international law, including : George Friedrich de Mar-
ten's Le Guide Diplomatique (published in 1876); Theodore D.
Worlsey's Introduction to the Study of International Law (pub-
lished in 1877); Johann Kaspar Bluntschli's Das Moderne Vlke-
recht (published in 1880); the Institut de droit international's Le
manuel des lois de la guerre (published in 1897) ; and later, William
Edward Hall's A Treatise on International Law (published in
1903). He himself taught international law in Tongwen Guan (Col-
lege of Foreign Languages, established in 1862) where he became
professor and president in 1868-1894m. International law was
included in the curriculum and, in 1879, nine students enrolled and
specialized in international law124. It seemed that there was a
gradual spread of the knowledge of international law, though in a
limited circle of officials and scholars. Li Hung-Zhang, one of the
highest officials, was impressed by such knowledge ; Guo Sungtao
and Zen Jize, both prominent diplomats made favourable com-
ments on it and referred to it in their suggestions to the Qing
Court125. In the 1870s, the knowledge was sometimes acquired
directly from the West. Ma Jianzhang, another diplomat, had per-
sonally studied international law in France. The comprador refor-
mer Zheng Guanying paid so high a regard to international law

122. North China Herald, No. 721 (21 May 1864), p. 82, quoted in Hsu,
supra, note 31, p. 138.
123. See Anonymous, supra, note 6.
124. Switchett and Fairbank, supra, note 8, Vol. 11, p. 162.
125. Ibid, pp. 164-165.
that he treated it in the first essay of his book on reform. Chen

Qiu, another reformer, made a proposal for establishing a world
organization consisting of all States and predicted that such a
proposal would materialize in 30 years126. In 1898, a small society,
the Association for International Law Studies, was set up in
Changshal27.
Notwithstanding the introduction of international law into
China, its practical application was nevertheless even more limited.
It was brought to China, but its full application was not intended.
The whole system of international law, its principles and rules,
were considered operative essentially only in relations among Wes-
tern powers, the so-called "civilized" or "Christian" countries, while
China was not a "civilized" country128. In China, the breakdown of
the traditional world order was not displaced by the establishment
of an international legal order. The change was to displace Chinese
superiority with Western dominance ; as aptly pointed out by John
Fairbank, "Peking refused intercourse on equal terms until it was
perforce extorted on unequal terms"129. The unequal treaty rgime
took the place of the tribute system and lasted for more than 100
years.
2. The Imposition of Unequal Treaties

The first unequal treaty imposed upon China was the Treaty of
Nanjing signed on 29 August 1842, on board the British frigate
Cornwallis m. It had been acclaimed as "the first 'Treaty of Peace,
Friendship, and Commerce' to which the sign manual of China had
ever been attached on the footing of equality m ". In fact, it was
forced on China at the maw of the British fleet and under the
126. Ibid., p. 197.

127. Ibid, p. 197, note 133.
128. See Chen Tiqiang, "The People's Republic of China and Public Interna-
tional Law", in Dalhousie Law Journal, Vol. 8, 1984, pp. 4-6.
129. In Twitchett and Fairbank, supra, note 8, Vol. 10, Part 1, p. 260.
130. For the Chinese text, see Wang, supra, note 80, Vol. 1, pp. 30-36; for
the English text, see The Maritime Customs, supra, note 80, Vol. I, pp. 351-356.
It was the first treaty "imposed on China at the mouth of the cannon of the
British fleet, and under the threat of an assault on the city of Nanking by British
troops", Morse, supra, note 58, Vol. I, p. 298.
131. George Lanning, Old Forces in New China, Shanghai, 1912, quoted in
Min-Chien T. Z. Tyau, The Legal Obligations Arising Out of Treaty Relations
between China and Other States, Shanghai, 1917.
238 Wang Tieya
threat of an assault on the city of Nanjing by British troops. It was

a result of military superior power which compelled China to sur-
render. It opened a new era in Chinese history, an era of Western
intrusion and the domination of unequal treaties m , which lasted
more than 100 years until the conclusion of the new treaties with
the United States and the United Kingdom in 1943, which abolished
in principle the extraterritorial system in China '", and the found-
ing of the PRC in 1949, when all unequal treaties were abrogated
in reality as well as in name.
More than 150 years before the Treaty of Nanjing was signed,
China had concluded the first modern treaty with Imperial Russia,
the Treaty of Nerchinsk, in 1689, delimiting certain portions of the
boundary between the two countries. After that treaty, several
others had followed, among which were the Kiahta Boundary
Treaty of 1727, the Supplementary Treaty of Kiahta of 1768 and
the Protocol relating to trade at Kiahta of 1792134. These treaties of
the pre-Nanjing Treaty period, from the end of the seventeeth cen-
tury to the end of the eighteenth century, were concerned mainly
with border problems : the demarcation of boundaries, the border
system, etc. They were principally equal in nature.
The Treaty of Nanjing, as a peace treaty after the conclusion of
war, was brief and short. Its main provisions were dealing with the
opening of five ports to British trade and residence, the cession of
Hong Kong to Great Britain, the payment of an indemnity of 21
dollars and the mode of correspondence and intercourse between
the officials of the two countries. It was followed by the General
Regulations for Trade at Five Ports with the Tariff of Duties on
Foreign Trade, agreed upon on 22 July 1843, and incorporated in
the subsequent and more important Supplementary Treaty signed
at the Bogue on 8 October 1843 l35. The Regulations and Supple-
132. Fairbank, supra, note 54, pp. 257-258.

133. For the Chinese texts of the two treaties, see Wang, supra, note 80, Vol.
3, 1256-1262 and 1262-1272; for the English text of the Sino-American Treaty
of 1943, see United Nations Treaty Series, Vol. 10 II, pp. 262-268, and the
English text of the Sino-British Treaty of 1943, see Waichaopu, The White
Book: The Sino-British Treaty for the Abolition of Extraterritoriality and Re-
lated Rights in China, Chongqing, 1943.
134. For the Chinese texts, see Wang, supra, note 80, Vol. 1, pp. 7-10, 22-30;
for the Russian and Latin texts, see The Maritime Customs, supra, note 80, Vol.
I, pp. 14-69.
135. For the Chinese text, see Wang, supra, note 80, Vol. 1, pp. 34-51 ; for
mentary Treaty provided for a tariff schedule, granted extraterri-

torial rights to the British subjects and contained a embryonic clause
of most-favoured-nation treatment.
Taking their opportunity from the British success, the Americans
and French followed suit and, under intimidation, the treaty with
the United States was signed at Wangxia on 3 July 1844 and
that with France at Huangpu on 24 October of the same yearl36.
They followed in the main the lines of the British treaties, but
the American treaty made further provisions formalizing and
refining the system of extraterritoriality, while the French scored a
victory in obtaining the right of establishing churchesl37. Some other
Western States took the same steps. Belgium obtained the informal
agreement of extending the same treatment to them138, while
the Kingdom of Sweden and Norway succeeded in concluding
a treaty on 20 March 1847l39. These treaties and agreements
formed the first group of unequal treaties. The foundation was
thus laid down for the establishment of the unequal treaty rgime in
China.
The second group of unequal treaties were those concluded in
1858-1860. Under the pressure of the demand for treaty revision
and the threat of war, the Qing Court agreed to sign treaties separ-
ately with four powers, Great Britain, France, the United States
and Russia in Tianjin in 1858, with similar provisions140. In addi-
tion to the provisions relating to foreign representation, the new
136. For the Chinese text of the Sino-American Treaty of 1844, see Wang,
supra, note 80, Vol. I, pp. 51-57; for the English text of the treaty, see The
Maritime Customs, supra, note 80, Vol. I, pp. 691-712. For the Chinese text of
the Sino-French Treaty of 1844, see Wang, supra, note 80, Vol. 1, pp. 57-65 ; for
the French text of the Treaty, see The Maritime Customs, supra, note 80, Vol. I,
pp. 791-813.
137. See Article XXIV and Article XXV of the Sino-American Treaty of
1844 and Article XXII of the Sino-French Treaty of 1844.
138. "Soon after Belgium obtained the requisite permission to trade, the in-
strument taking the form of a vicereal letter, dated 25 July 1845, in which were
enclosed copies of the treaties with Great Britain, the United States and France,
and an imperial decree granting the same on these terms", Tyau, supra, note
131, p. 6; for the French translation of the letter, see The Maritime Customs,
supra, note 80, Vol. II, p. 3.
139. For the Chinese text, see Wang, supra, note 80, Vol. I, pp. 71-77 ; for the
English text, see The Maritime Customs, supra, note 80, Vol. II, pp. 64-93.
140. For the Chinese texts of these four treaties, see Wang, supra, note 80,
Vol. I, pp. 86-112; for the Russian, English and French texts of these four
treaties, see The Maritime Customs, supra, note 80, Vol. I, pp. 92-100, 404-421 and
814-838.
240 Wang Tieya
treaties legalized the opium trade, allowed foreign merchant ships

to navigate the Yangzi River, opened additional ports, allowed
warships to cruise along the sea coasts and to be stationed in inland
waters, inaugurated the passport system for inland trade and resi-
dence, and further developed the system of extraterritoriality. As to
customs duties, a new and low tariff was drawn up and the uniform
tariff by agreement was expressly provided '4I. The Russians ex-
ploited the weak position of the Qing Dynasty, took the independent
action of inducing the Chinese to conclude the Treaty of Aigun in
the same year (1858) which took away from China the left bank of
the Amour and Songari Rivers in the size of 485 thousand square
kilometres142. Then, the treaties were concluded at Beijing in
I860143, after the war which Great Britain and France waged
against China, called in Chinese history "the Second Opium
War" m . Existing treaties were confirmed and new provisions were
inserted for enlarging the privileges of trade and commerce. To
Great Britain, a portion of the township of Kowloon, which had
been previously leased in perpetuity as a dependency of Hong
Kong, was cededl45, while the French missionaries were granted the
141. According to Article XXVI of the Sino-British Treaty of 1858, a tariff

was agreed upon at Shanghai in November 1858 between the British Plenipoten-
tiary and the Chinese Commissioners, and accepted at the same time by the
Plenipotentiaries of France and the United States. For the English and Chinese
texts of the tariff, see The Maritime Customs, supra, note 80, Vol. I,
pp. 435-466.
142. For the Chinese texts, see Wang, supra, note 80, Vol. I, pp. 85-86; for
the French and Russian texts, see The Maritime Customs, supra, note 80,
Vol. I, pp. 81-84.
143. For the Chinese texts of the Sino-British and Sino-French treaties of
1860, see Wang, supra, note 80, Vol. I, pp. 144-148 ; for the English and French
texts, see The Maritime Customs, supra, note 80, Vol. I, pp. 430-434 and
885-890.
144. Liu Peihua, The History of Modern Chinese Foreign Relations, 2 vols,
(in Chinese), Beijing, 1986, Vol. I, pp. 141-156.
145. Article VI of the Sino-British Treaty of 1860 (called the Convention of
Beijing) provided as follows :
"With a view to the maintenance of law and order in and about the
harbour of Hongkong, His Imperial Majesty the Emperor of China agrees
to cede to Her Majesty the Queen of Great Britain and Ireland, and to
Her Heirs and Successors, to have and to hold as a dependency of her
Britannic Majesty's Colony of Hongkong, that portion of the township of
Cowloon, in the province of Kwangtung, of which a lease was granted in
perpetuity to Harry Smith Parkes, Esquire, Companion of the Bath, a Mem-
ber of the Allied Commission at Canton, on behalf of Her Britannic
Majesty's Government, by Lau Tsung Kwang, Governor General of Two
Kwang."
right to lease land and to build houses in inland China M. The Qing
Court was obliged to pay indemnities to both countries for the
expenses they incurred from the war. Russia again took advantage
of the difficulties which the Chinese faced in their negotiations with
the two Western powers and the Russian intrigue had resulted in
signing the Treaty of Beijing of 1860, by which not only all the
privileges which the Western powers obtained were similarly granted
to the Russians, but another large area of territory was ceded to
them an area of a size of 346 thousand square kilometres which
had been put by the Treaty of Aigun of 1858 under the co-
dominion of both countries w.
During the 15 years after 1860, some more States entered into
treaty relations with China; they were: Prussia, in 1861 ; Portugal,
in 1862; Denmark, in 1863; the Netherlands, in 1863; Spain, in
1864; Italy, in 1866; Austria-Hungary, in 1869; Japan, in 1871;
and Peru, in 1874l48. The scope of the unequal treaty system was
thus expanded by including these new-comers who obtained the
same rights and privileges as their predecessors. During these years,
Russia extended its aggression to northwest China. It extorted a
large portion of territory in that area from China by concluding
several boundary agreements, notably the so-called Protocol of
Chuguchak in 1864l49, and it extended its land trade to that area by
concluding two conventions of Beijing in 1862 and 186915.
146. In the French text of the Sino-French Treaty of 1860 (called Convention
of Beijing), there was no such provision, but the provision was inserted in the
Chinese text of Article VI of the Treaty to the effect that "it is permitted to
French missionaries to rent and purchase land in all the provinces, and to erect
buildings thereon at pleasure". See Wellington V. K. Koo, The Status of Aliens
in China, New York, 1912, p. 16 and Westel W. Willouhby, Foreign Rights
and Interests in China, 2 vols., revised and enlarged edition, Baltimore, 1907,
Vol. II, p. 707.
147. For the Chinese text, see Wang, supra, note 80, Vol. I, pp. 149-154; for
Vol. I, pp. 101-120.
148. For the Chinese text of these treaties, see Wang, supra, note 80, Vol. I,
pp. 163-170, 187-194, 197-204, 208-213, 128-226, 246-254, 177-284 and 317-320;
for the English, French, German, Portuguese, Dutch, Spanish, Italian and
Japanese texts, see The Maritime Customs, supra, note 80, Vol. II, pp. 115-138,
251-257, 313-329, 339-351, 359-377,403-420, 457-476 and 642-658.
149. For the Chinese text, see Wang, supra, note 80, Vol. I, pp. 215-218 ; for
the English translation, see The Maritime Customs, supra, note 80, Vol. I,
pp. 144-151.
150. For the Chinese texts of these two conventions, see Wang, supra, note
80, Vol. I, pp. 184-186 and 271-274; for the Russian texts, see The Maritime
Customs, supra, note 80, Vol. I, pp. 135-139 and 161-167.
242 Wang Tieya
The period from the end of the 1860s to 1895 when the war
between China and Japan broke out witnessed the further break-
down of the Chinese traditional world order and its involvement in
conflict with foreign powers on its borders and its former tributary
countries. With Japan, it signed the agreement of Beijing in 1874
and was to pay indemnity for the murder of some Liuchiu people
by the "savages of Formosa", which implied the Japanese domi-
nion over Liuchiu and furnished the pretext for its future aggres-
sive steps toward Formosa151. After the so-called Margary Affair
(an officer by name of Margary was killed in Yunnan), the Chefoo
Convention was concluded with Great Britain in 1876152, by which,
in addition to paying indemnity, China agreed to send an expiatory
mission to England. Moreover, the system of extraterritoriality was
further extended by establishing the mixed court at Shanghai and
regulations for trading were revised to facilitate the trade along the
Yangzi River and a separate article was attached to the Convention
conferring the right of the British to send a mission of exploration
"by way of Peking through Kan Su and Koko Nor, or by way of
Ssu Chuan, to Tibet, and from there to India"153. Russia got its
share in the Treaty of Petersburg of 1881l54. The dominion of Hi,
"temporarily occupied" during the Mohammedan rebellion in the
northwest of China was restored to the Chinese Government on
condition that China was to pay an indemnity of nine million rou-
bles, a portion of the frontier was relimited in favour of Russia,
and commercial privileges formerly granted to Russia were con-
firmed and extended by the Treaty and the Revised Regulations
for the Land Trade attached to it155.
151. For the Chinese text of the agreement, see Wang, supra, note 80, Vol. I,
pp. 342-344 ; for the English translation, see The Maritime Customs, supra, note
80, Vol. II, pp. 585-586. In the preamble of the agreement, it was stated that :
"Certain Japanese subjects [in fact, some Liuchiu people] having been wantonly
murdered by the unclaimed savages on Formosa, the Government of Japan,
regarding these savages as responsible, despatched a force against them to exact
satisfaction" and then Article I provided that : "The present proceedings having
been undertaken by the Government of Japan for the humane object of affor-
ding security to its own subjects, the Government of China will therefore not
impute blame to it." The Maritime Customs, supra, note 80, Vol. II, p. 585.
152. For the Chinese text, see Wang, supra, note 80, Vol. I, pp. 346-350, for
the English text see The Maritime Customs, supra, note 80, Vol. I, pp. 491-499.
153. The Maritime Customs, supra, note 80, Vol. I, p. 498.
Vol. I, pp. 168-187.
155. Liu, supra, note 144, Vol. 1, pp. 285-292.
As mentioned above, the loss of China's suzerainty over Liuchiu

was implied in the agreement with Japan in 1874. The disintegra-
tion of the Chinese Empire in the traditional sense was accelera-
ting, however, after 1884. The signal was the Sino-French war of
1883-1885. The war forced China to recognize the special relation-
ship between France and Annaml56. In the Convention of Tianjin of
1884, China engaged to respect all treaties concluded directly be-
tween France and Annam '". In the Treaty of 1885, which termina-
ted the war, the previous stipulations were confirmed : China de-
cided not to interpose the action of pacification taken by the French
in Annam and engaged to respect all treaties concluded between
France and Annaml58. Annam was drawn away from China and
placed under the protectorate of France.
Burma came next. The Convention between China and Great
Britain relating to Burma and Tibet of 1886, provided that :
"China agrees that in all matters whatsoever appertaining to
the authority and rule which England is now exercising in
Burma, England shall be free to do whatever she deems fit
and proper" (Article II)l59.
Sikkim followed suit by the Sino-British Convention relating to
Sikkim and Tibet, 1890, by which
"it is admitted that the British Government, whose protector-
ate over the Sikkim State is hereby recognized, has direct and
exclusive control over the internal administration and foreign
relations of that State, and except through and with the per-
mission of the British Government, neither the Ruler of the
State, nor any of its officers shall have any official relations of
any kind, formal or informal, with any other country" (Article
II)160.
Both Burma and Sikkim broke away from their tributary relations
156. Ibid., p. 329.

the French text, see The Maritime Customs, supra, note 80, Vol. I, pp. 894-896.
244 Wang Tieya
with China and became British protected States. Korea, one of the
most important tributary states under Chinese suzerainty, became
an object of controversy between China and Japan since 1876 when
Korea was forced to conclude a treaty with Japan '6'. The result of
the outbreak of the war of the latter two countries was that
Korea was denied independence and sank fast into the status of a
Japanese colony.
The Sino-Japanese war of 1894-1895 and the consequent Treaty
of Shimonoseki of 17 April 1895 ushered China into a new period
in which it faced grave aggression by foreign powers and a fierce
battle for concessions among themselves. The Treaty of Shimono-
seki provided that :
"China recognizes definitely the full and complete indepen-
dence and autonomy of Korea, and, in consequence, the pay-
ment of tribute and performance of ceremonies and formali-
ties by Korea to China in derogation of such independence
and autonomy shall wholly cease for the future '"."
In fact, Korea lost its independence and autonomy completely.
According to the Treaty, China ceded to Japan the southern por-
tion of the Liaodong Peninsula, the islands of Formosa and the
Pescadores. It was to pay an indemnity of 200 million taels. A new
treaty of commerce and navigation was to be concluded in order to
grant new commercial privileges to the Japanese163. The triple
intervention of Russia, France and Prussia before the ratification
of the treaty of Shimonoseki, however, compelled Japan to retro-
cede the ceded portion of the Liaodong Peninsula to China. An
agreement was signed, by which, in return for the retrocession,
China was obliged to pay an additional sum of 30 million taels as
compensationl64.
The effect of the Treaty and the agreement was great. As the
161. As to The Treaty of Kangwha of 24 February 1876, see Liu, supra, note
144, Vol. l,p. 300.
the English and Japanese texts, see The Maritime Customs, supra, note 80,
Vol. II, pp. 590-598 and 707-715.
163. The Treaty of Commerce and Navigation was signed on 21 July 1896.
For the Chinese text, see Wang, supra, note 80, Vol. I, pp. 662-670; for the
Japanese text, see The Maritime Customs, supra, note 80, Vol. II, pp. 721-731.
the English and Japanese texts, see Treaties between Japan and China and
Japan and Other States concerning China (in Japanese), Tokyo, 1923, pp. 24-30.
Qing Court was in no position to meet its financial obligations

of paying indemnities, it had no choice but to contract loans. It
borrowed from foreign banks on onerous terms, from a Franco-
Russian Banking Consortium in 1895 and from a British-German
Consortium in 1896 and 1898l65. The door was opened to exploita-
tion and plunder. By winning the gratitude of the Chinese, the Rus-
sians tactfully agreed to sign on 3 June 1896 a secret treaty of
alliance with China for the purpose of inducing the Chinese to
grant them a concession for the construction of a railway from
Chita to Vladivostok, through Heilungjiang and other provinces m.
The secret treaty of 3 June 1896 was followed by an agreement for the
construction of that railway on 8 September of that same year166.
No less aggressive at that time was the demand by Germany for
a naval base as a reward. It seized Kiaochow on the pretext of the
murder of two missionaries in Sbangdong and compelled China to
sign a treaty on 6 March 1898 by which Kiaochow was leased to
Germany for 99 yearsl67. Less than one month later, on 27 March
1898, by the treaty signed with Russia, the southern portion of the
Liaodong Peninsula, which China had bought back from Japan by
paying an additional indemnity, was leased to Russia for 25
yearsl68. Not willing to stay behind the Germans and the Russians,
the British leased Kowloon (New Territories) for 99 years and Wei-
haiwei for 25 years by two conventions signed separately on 9 June
and 1 July of the same yearl69. The French leased also Guangzhou
165. The Contract of Loan with a Franco-Russian consortium was signed in

Petersburg, on 6 July 1895 ; for the Chinese text, see Wang, supra, note 80, Vol.
I, pp. 626-630 ; no text of other languages can be found. The Contract of Loan
with an Anglo-German consortium was signed in Beijing, on 23 March 1896, and
another contract signed in Beijing on 1 March 1898. For the Chinese texts of
these two contracts, see Wang, supra, note 80, Vol. I, pp. 641-644 and 733-737;
for the English texts, see John V. A. MacMurray, Treaties and Agreements with
and Concerning China, 2 vols., New York, 1921, Vol. I, pp. 55-59 and 111-112.
the French text, see The Department of Treaty of the Waichiaopu, Treaties,
Conventions, Agreements, Exchanges of Notes, etc., between China and
Foreign Powers, Part VII, China and Russia, Beijing, 1927, pp. 356-359.
the German text, see The Maritime Customs, supra, note 80, Vol. II,
pp. 205-214.
the Russian text, see The Department of Treaty of the Waichaopu, supra, note
166, pp. 378-384.
169. For the Chinese texts of the two conventions, see Wang, supra, note 80,
Vol. I, pp. 769-770 and 782-783 ; for the English texts, see The Maritime Cus-
toms, supra, note 80, Vol. I, pp. 539-540 and 541-542.
246 Wang Tieya
Bay for 99 years by the treaty of 27 May 189817. Then, the spheres
of influence were established by the powers : Russia in Manchuria ;
Germany, in Shangdong; Britain in the Yangzi valley; France in
the three provinces in the southwest; and Japan in Fujian Pro-
vince. During these years, loans were extensively contracted and con-
cessions were extracted for constructing railways, exploiting mines,
etc. The unequal treaties were supplemented by hundreds of agree-
ments, regulations and contracts of an informal and even private
nature m . They, both, constituted parts of the unequal treaty rgime.
The scramble for concessions went on in spite of the so-called
Open Door policy declared by the United States m. The threatened
portioning of China was prevented by the equilibrium sustained by
the rival powers. The storm broke in 1900, however, with the result
that one of the most humiliating unequal treaties was signed at
Beijing on 7 September 1901 with 11 powers; Austro-Hungary,
Belgium, France, Germany, Great Britain, Italy, Japan, the Nether-
lands, Russia, Spain and the United States. The Protocal signed
consisted of extravagant demands from the powers relating to : (1)
punishment of the guilty ; (2) indemnity of 450 million taels ; (3)
apology missions to Germany and Japan ; (4) establishment of the
legation quarters at Beijing ; (5) destruction of the forts from Bei-
jing to the sea ; (6) prohibition of the importation of arms for two
years ; (7) stationing of foreign troops in key points from Beijing to
the sea; (8) suspension of official examinations for five years in
some cities ; and (9) revision of treaties of commerce and naviga-
tion conferring more commercial privileges on the powers m .
The Russian occupation of Manchuria before and during the
Boxer Uprising and the acute contention of Russia and Japan over
Korea led to the outbreak of war between the two countries in
1904-1905. China did not participate in the war, but it was the
victim of the war. When Russia was defeated by Japan, by the
Treaty of Portsmouth of 22 September 1905, the rights and privi-
no. For the Chinese text, see Wang, supra, note 80, Vol. I, pp. 929-931 ; for
171. See Liu, supra, note 144, Chap. 6, s. 3.
172. For the communications sent by the United States to Germany, Russia,
France, Japan, Great Britain and Italy, see MacMurray, supra, note 165, Vol.
I, p. 221.
173. The treaty was called International Protocol, 1901, which consists of a
treaty of 12 articles and 19 annexes. For the Chinese text, see Wang, supra, note
80, Vol. I, pp. 1001-1024; for the French text, see The Maritime Customs,
supra, note 80, Vol. I, pp. 303-341.
leges previously acquired by Russia were transferred to Japan174.

Later, by the treaty of 22 December 1905, between China and Japan,
China formally recognized that Japan inherited the lease of the
southern portion of Liaodong and the concession of the railway
from Changchun to Port Arthur called the South Manchurian
Railway. In addition, 16 ports in Manchuria were opened to trade,
the operation of a strategic railway constructed in the Fengtian
Province during the war was granted to Japan, and other special
commercial privileges were providedl75.
During this period, from the Boxer Uprising of 1900 to the estab-
lishment of the Republic of China, in addition to some treaties of
commerce and navigation, numerous agreements, regulations and
contracts of an exploitive nature were made, covering not only loans
and railways, but mining, lumbering, telegraph construction, and
settlements in trade ports. Serious difficulties were created in the
border areas, especially for Russia and Japan in Manchuria and
Great Britain in Tibet. After the British invasion of Tibet in 1903,
the so-called Treaty of Lhasa was signed by the Tibetan local
authorities on 7 September 1904 which dealt with the problems of
frontiers, trade, and indemnity and contained a clause of non-
alienation, putting Tibet in the exclusive sphere of influence of
Great Britainl76. China was forced to recognize it by the treaty of
27 April 1906, though the British made some concessions under
pressure from Russial77.
The most glaring example of the Chinese unequal treaties was
that of 25 May 1915 made under duress by Japan upon Chinal78.
The infamous Twenty-one Demands were presented to Yuan Shi-
kai, the President of the new Republic179. Japan, utilizing the
opportunity of the First World War, attempted to attain her
aggressive purpose of gobbling up the whole of China. After the
174. For the English text, see MacMurray, supra, note 165, Vol. I, p. 522.
175. For the Chinese text, see Wang, supra, note 84, Vol. II, pp. 338-342;
for the Japanese text, see The Maritime Customs, supra, note 80, Vol. II,
pp. 734-739.
176. For the English text, see MacMurray, supra, note 165, Vol. I, p. 576.
177. For the Chinese text, see Wang, supra, note 80, Vol. II, pp. 345-349 ; for
for the Japanese text, see The Maritime Customs, supra, note 80, Vol. II,
pp. 782-983 and 788-790.
179. For the English text of the original demands, see The Maritime Cus-
toms, supra, note 80, Vol. II, p. 1229.
248 Wang Tieya
military occupation of Shangdong, the Twenty-one Demands were

presented to the President of the new Republic and were followed
by an ultimatum with the threat of using force. The Demands
consisted of five groups : (1) recognition of Japan's special position
in Shangtong ; (2) the predominant position for Japan in Manchu-
ria and Inner Mongolia; (3) the joint operation of iron and steel
industries by the joint Chinese and Japanese enterprise the Hang-
yehping Company ; (4) non-alienation of coastal areas to any third
power; and (5) control by Japan of some of China's important
domestic administration, including the employment of Japanese
advisers in Chinese political, financial, military and police adminis-
trations, and some Sino-Japanese joint military factories in China.
These demands would seriously impair China's sovereign rights and
infringe its administrative integrity. Under Japanese pressure, Yuan
accepted the first four groups while putting reservations on the fifth
and signed the aforesaid treaties and agreements of national
betrayal and humiliation '80.
The history of unequal treaties extended to the Second World
War, until they were abolished by the new treaties of 1943 and was
entirely put to an end at the founding of the PRC. The above
survey gives only an incomplete picture. Many other treaties were
concluded after the Opium War of 1840. Moreover, since the
conclusion of the Sino-Japanese War of 1895 there were a great
number of agreements, regulations and contracts made by foreign
corporations and enterprises which were not treaties, both in form
and nature, but were imposed upon China as binding commit-
ments. They were extensively used for political oppression and
economic exploitation. According to The Comprehensive Collec-
tion of Old Treaties, Agreements, Regulations, etc., between China
and Foreign Countries, 1689-1949 (three volumes), the number of
all treaties, agreements, regulations, etc., from 1842 to 1949 is
1,175, of which four-fifths are the agreements, regulations and
contracts made between China and foreign corporations and enter-
prises m . They formed an important part of the unequal treaty
rgime in China.
180. See Liu, supra, note 144, pp. 375-389.

181. See supra, note 80 ; in the Preface, it is stated by the editor that :
"The scope of Comprehensive Compilation is not limited to treaties and
agreements concluded with foreign countries, but includes various regula-
tions, contracts, etc., concluded with foreign enterprises and corporations.
Only a few equal treaties were concluded during the whole

period. Mention may be made here that, after the Hague Conven-
tions of 1899 and 1907 to which China was a party, a treaty of
arbitration was concluded with the United States in 1908182, and it
was then followed by two similar treaties separately with Brazil in
1909 and the Netherlands in 1915l83. In the series of the so-called
Bryan arbitration treaties, signed at Washington in the autumn of
1914, was included a treaty with Chinam. A few unequal treaties were
those concluded with the defeated powers and new States which
emerged after the First World War185. The most notable one is
the Agreement on General Principles for the Settlement of the
Questions between the Republic of China and the Soviet Union
of 31 May 1924 which provided in its Article III that :
"The Governments of the two Contracting Parties agree to
annul at the conference as provided in the preceding article,
Such regulations or contracts are by nature not within the scope of interna-
tional treaties. Yet, in the past, the imperialist aggression on China has
often taken the form of such regulations or contracts, and such regulations
and contracts are the materials which must be used in the study of the
imperialist aggression on China." (Ibid., p. 1.)
182. For the Chinese text, see Wang, supra, note 80, Vol. II, pp. 539-540 ; for
183. For the Chinese texts, see Wang, supra, note 80, Vol. II, pp. 583-585 and
1114-1116; for the Portuguese text of the Sino-Brazil treaty of 1909, see The
Maritime Customs, supra, note 80, Vol. II, pp. 824-826 ; for the French text of the
Sino-Dutch treaty of 1915, see Tyau, supra, note 131, Appendix, pp. 233-235.
for the English text, see The Department of Treaty of the Waichaopu, supra,
note 166, Part II : China and the United States, pp. 167-171.
185. They included the Convention with Germany of 20 May 1921, for the
Chinese text, see Wang, supra, note 80, Vol. Ill, pp. 167-173; for the German
and French texts, see Waichaopu, Diplomatic Correspondence: Sino-German
Convention, Beijing, 1921, pp. 1-4, 6-7 and 9-10; the Treaty of Commerce with
Austria of 19 October 1925, for the Chinese text, see Wang, supra, note 80,
Vol. Ill, pp. 570-574; for the German text, see League of Nations Treaty Series,
Vol. 55, pp. 16-26 ; the Treaty of Amity with Finland of 29 October 1926, for the
Chinese text, see Wang, supra, note 80, Vol. HI, pp. 604-605 ; for the Finnish
and French texts, see League of Nations Treaty Series, Vol. 67, pp. 450-455 ; the
Treaty of Amity, Commerce and Navigation with Poland of 18 September 1929,
for the Chinese text, see Wang, supra, note 80, Vol. Ill, pp. 719-726; for the
Polish and French texts, see League of Nations Treaty Series, Vol. 120,
pp. 332-342; the Treaty of Amity and Commerce with Czechoslovakia of
12 February 1930, for the Chinese text, see Wang, supra, note 80, Vol. Ill,
pp. 766-769 ; for the Czech and English texts, see League of Nations Treaty Series,
Vol. 110, pp. 286-292; and the Treaty with Turkey of 11 April 1934; for the
Chinese text, see Wang, supra, note 80, Vol. HI, pp. 958-959 ; for the French
text, see Waichaopu, White Book, The Sino-Turkish Treaty of Amity of 1934,
Nanking, 1934.
250 Wang Tieya
all Conventions, Treaties, Agreements, Protocols, Contracts,

et cetera, concluded between the Government of China and
the Tsarist Government, and to replace them with new
treaties, agreements, et cetera, on the basis of equality, recipro-
city and justice, as well as the spirit of the Declarations of
the Soviet Government of the years of 1919 and 1920186."
Since the establishment of the Nationalist Government in Nanjing

in 1925, efforts have been made to abolish unequal treaties and to
replace them with new treaties. But it resulted only in concluding
tariff treaties with eight countries which restored the tariff auto-
nomy to Chinal87 and five treaties of friendship and commerce with
another five countries which contained only a conditional agree-
ment of abolishing the system of extraterritoriality188. The hope of
abolishing unequal treaties was frustrated by the Japanese invasion
of Manchuria in 1931 and was only revived during the Second
World War.
3. The Unequal Treaty Rgime
The unequal treaties concluded by China since 1842 formed the

foundation of the unequal treaty rgime in Chinal89. The Chinese
traditional world order began to break down when it was attacked
by the superior forces of the Western powers. It was not replaced
by the modern international order of the system of sovereign
186. For the Chinese text, see Wang, supra, note 80, Vol. HI, pp. 423-430;
for the English text, see The Department of Treaty of Waichaopu, supra, note
166, pp. 709-715 and 722-733. For the declarations of 1919 and 1920, see Cheng
Daode, et al., Selected Materials on the Diplomatic History of the Republic of
China (1919-1931) (in Chinese), Beijing, 1985, pp. 165-170 and 173-176.
187. The eight countries were: the United States, Germany, Norway, the
Netherlands, the United Kingdom, Sweden, France and Japan. AH the treaties
were concluded in 1928 with the exception of the treaty with Japan, which was
concluded in 1930.
188. The five countries were: Belgium, Italy, Denmark, Portugal and Spain.
All the treaties were concluded in 1928.
189. "The eventual upshot of British military superiority, as demonstrated in
the Opium War of 1840-1842, was a nexus of mutually naval, legal, administra-
tive and commercial arrangements which for brevity we call the 'treaty system'",
J. K. Fairbank, "Synarky under the Treaties", in J. K. Fairbank (ed.), Chinese
Thoughts and Institutions, Chicago, 1957, p. 212. "The West proved more
powerful, and the resulting pattern of treaties imposed upon China is usually
referred to as the Unequal Treaty System", Rozeman, supra, note 39, p. 34.
States, but by a new order of unequal treaties. In China's foreign

relations, what applied were not principles and rules of interna-
tional law, but unequal treaties.
The main features of the unequal treaty system were force and
inequality. The treaties were imposed by force or concluded under
the threat of force with the purpose of exacting rights and privi-
leges for the foreigners and their countries in flagrant violation of
the sovereignty and independence of China, the idea of equality
being completed rejected.
During a period of 100 years, China was forced to engage in five
wars, they were: (1) the First Opium War of 1840-1842; (2) the
Second Opium War of 1858-1860; (3) the Sino-French War of
1883-1885; (4) the Sino-Japanese War of 1894-1895; and (5) the
War of Eight Powers against China of 1900-1901 ". In each of
these wars, China was defeated and had to pay the price. As a
result of each war, humiliating unequal treaties were concluded : (1)
the Treaty of Nanking after the First Opium War of 1840-1842; (2)
the treaties of Tienisin and Beijing after the Second Opium War of
1858-1860; (3) the Articles on Annam after the Sino-French War
of 1883-1885; (4) the Treaty of Shimonoseki after the Sino-
Japanese War of 1894-1895; and (5) the International Protocol
after the War of Eight Powers against China of 1900-1901. These
treaties, concluded after the wars, constituted the backbone of the
unequal treaty system in China.
In many cases, treaties were concluded by using force, though
not extending to war, or under the threat of force. The treaty of
leasing Kiaochow to Germany was an example. On the pretext of
the murder of two German missionaries, German naval forces
occupied Kiaochow and demanded the leasing of that bay. Finally,
a treaty was signed and Kiaochow was leased to Germany for 99
years "'. The most notorious case of treaties made under the threat
of force was the treaties of 1915 with Japan. The infamous Twenty-
One Demands were submitted to the Beijing Government and after
three months of tense negotiations, the treaties were accepted under
the pressure of the Japanese ultimatum of 7 May 1915 which
demanded a satisfactory reply within a two-day time-limit and
indicated that if the reply was not satisfactory, the Japanese
190. Rozeman, supra, note 39, p. 34.

191. Liu, supra, note 144, Vol. 1, pp. 34-44.
252 Wang Tieya
Government would take the measures which it deemed necessaryl92.

This is a typical case of treaties made under duress.
Nearly all treaties and agreements of unequal nature concluded
by China and foreign powers were negotiated in conflict situations
and completed under the greatly unequal power relationship.
Smaller powers used opportunities to put a squeeze on China; they
had the support of the big powers. It was usually the case that the
unequal treaties concluded by big powers were followed by those of
smaller ones. The unequal treaty rgime thus formed was essen-
tially based on force. Force was symbolized by gunboats and naval
vessels on the rivers, in the ports and along the coasts. It was the
military force which supported the diplomatic arm to ensure that
the rgime was respected "3.
The rgime was broad in scope and, under the rgime, numerous
special rights and privileges were granted. It included 19 powers, 14
of which were European countries, namely, Austria, Belgium,
Denmark, France, Germany, Great Britain, Italy, the Netherlands,
Norway, Portugal, Russia, Spain, Sweden and Switzerland, one
from Asia, Japan, one from North America, the United States,
and the remaining three were South American countries, Brazil,
Mexico and Peru. They were called "treaty powers" and enjoyed
the special rights and privileges provided by unequal treaties.
The special rights and privileges acquired by the powers were
multitudinous. They may be listed as follows :
1. the system of extraterritoriality including the foreign courts
and the "mixed court" at Shanghai ;
2. fixed and low tariff provided by treaties ;
3. foreign controlled settlements and concessions at the trade
ports;
192. Liu, supra, note 144, Vol. 1, pp. 375-389. For the English translation of
the ultimatum, see MacMurray, supra, note 165, Vol. II, pp. 1234-1235. The
concluding passage of the Japanese ultimatum runs as follows :
"The Japanese Government therefore advise the Chinese Government
that they will, in appreciation of the good will of the Imperial Government,
accept without amendment all items. In case the Imperial Government fail
to receive from the Chinese Government before 6 p.m. of May 9, a satisfac-
tory response to their advice, they will take such independent action as they
may deem necessary to meet the situation." (MacMurray, supra, note 165,
p. 1235.)
193. This was usually called "gunboat diplomacy", see John C. Vincent, The
Extraterritorial System in China, Cambridge, 1970, p. 11.
4. leased territories considered as "disguised territorial cession";

5. foreign controlled Legation Quarter and legation guards at
Beijing;
6. foreign troops at Tienjin and at points along the railway from
Beijing to the sea ;
7. foreign gunboats and naval vessels at coastal ports and on the
Yangzi River ;
8. foreign police along certain railways ;
9. foreign administered maritime customs service, postal service
and Salt Gabelle (tax agency) ;
10. coastal navigation (cabotage) and navigation on inland waters ;
11. immunity from direct taxation ;
12. payment of indemnities ;
13. loans and their guaranties ;
14. railway, mining and telecommunication concessions ;
15. the right of issuing currency ;
16. the right of missionaries to settle, acquire real property and
proselytize throughout the country ;
17. the establishment of educational institutions free from Chinese
supervision M ;
and the most-favoured-nation clauses, which were unilateral, uncon-
ditional and broad in scope, extended all these special rights and pri-
vileges to all countries which were in a treaty relation with China "5.
194. Vu Nengmu has a list of eight items, including extraterritoriality, customs
tariff, coastal trade, inland navigation, stationing of warships, stationing of
troops, settlements and concessions, and leased territories, The Process of the
Abolition of Unequal Treaties, Taibei, 1951, pp. 1-17, while Ye Zuhao enumera-
ted in more detail, including IS items, with the last item to include "other pre-
rogatives", The Abolition of Unequal Treaties, Taibei, 1967, pp. 39-66. See also
Vincent who listed, in addition to the original and basic concession of "consular
jurisdiction", 14 categories of rights, interests and privileges "acquired or asser-
ted by the powers over the course of almost a century", ibid., p. 2.
195. "The Most-Favoured-Nation Clause made its appearance in China at
practically the beginning of its treaty relations with the Western Powers." Wil-
loughby, supra, note 146, Vol. I, p. 38. It was usually unilateral, broad and
unconditional, for example, Article IX of the Sino-Japanese treaty of 1903,
which provided that :
". . . and it is hereby expressly stipulated, in addition, that the Japanese
Government, officers, subjects, commerce, navigation, shipping, industries,
and property of all kinds shall be allowed free and full participation in all
privileges, immunities, and advantages which have been or may hereafter be
granted by His Majesty, the Emperor of China, or by the Chinese Govern-
ment, or by the Provincial or Local Administrations of China to the
Governments, officers, subjects, commerce, navigation, shipping, industries,
or property of any other nations".
254 Wang Tieya
Besides, there were treaties which ceded territories to foreign

powers196 and which established the spheres of influence under
foreign control197. And there were also treaties under which tri-
butary dependencies were severed from China and had become the
object of annexation by foreign powersl9S.
The unequal treaty system was sometimes called the system of
extraterritoriality because the latter symbolized the former and was
one of the most important privileges acquired by the foreign coun-
tries, with detrimental effects on China and drawing the attention
of the Chinese most intensively m.
Extraterritoriality, or consular jurisdiction, was provided in
embryonic form in the treaty of 1843 with Great Britain which
was supplementary to the treaty of Nanjin of 1842 and received
more explicit definition in the American treaty of 1844. Further
elaboration was made in the treaties of 1858 and later treaties. Its
extent may be stated as follows :
1. As regards cases in which only Chinese were involved, the
jurisdiction was in the hands of the Chinese authorities, while the
case concerning the foreigners of one and the same nationality
should be subject to the jurisdiction of the authorities of their own
countries. If the case affects the subjects of different nationalities, it
"should be regulated by the existing treaties between various States
without interference on the part of China"200.
2. In respect of mixed cases, that is, cases involving Chinese and
foreigners, the rule was that the cases in which the plaintiffs were
196. Zhang Tinghao has given a list of IS territories and dependencies lost by
China to foreign powers : Great Britain, Russia, France, Japan, and Portugal,
"Studies on Unequal Treaties" (in Chinese), in Lin Quan, The Historical Ma-
terials on the Abolition of Unequal Treaties during the Period of War of Re-
sistance, Taibei, 1982, p. 230. According to a list which appeared in Lin Quan,
supra, during the Qing dynasty, China had lost to Russia about 2,272 thousand
square kilometres of territory. According to the Statement of the Government
of the People's Republic of China of 24 May 1969, Tsarist Russia "forced China
to sign a series of unequal treaties, by which it annexed more than l.S million
square kilometres of Chinese territory", Peking Review, Vol. 12, No. 22, 1969,
pp. 4-5.
197. Spheres of influence were established by Great Britain, France, Ger-
many, Russia and Japan, through agreements of non-alienation of territories, of
special privileges and priorities and of spheres of interest.
198. Including Korea, Liuchiu, Annam, Burma, Siam, Nepal and Sikkim.
199. See Switchett and Fairbank, supra, note 8, Vol. 11, p. 195.
200. For instance, Article 25 of the Sino-American treaty of 1844.
nationals of foreign powers and the defendants were Chinese were

to be adjudicated in the Chinese courts, while cases in which the
plaintiffs were Chinese and the defendants were nationals of
foreign powers were to be adjudicated by the consuls. In criminal
cases, for instance, where Chinese were guilty of any criminal act
towards foreigners, they should be arrested and punished by the
Chinese authorities while foreigners who committed any crime in
China should be tried and punished by the consuls or other public
functionaries authorized thereto according to the laws of the coun-
tries concerned201.
Extraterritoriality was sometimes called consular jurisdiction, as
the extraterritorial jurisdiction possessed by the treaty powers in
China was exercised, in the main, by the consular officials of the
treaty powers. At the beginning of the twentieth century, however,
special courts were set up to exercise extraterritorial jurisdiction in
China by two powers, Great Britain and the United States. In the
case of Great Britain, the Order in Council of 1904 which was later
replaced by the Order of 1925, provided for the establishment of
the British Supreme Court for China at Shanghai and the Provin-
cial Consular Courts in other parts of China202. In the case of the
United States, by the Act of 1906, entitled "An Act Creating a
United States Court and Proscribing the Jurisdiction thereof', the
United States Court for China was established. It had its own
jurisdiction and acted as court of appeal of the consular court and
from its judgments or decrees appeal could be taken to the United
States Circuit Court of Appeal and then to the Supreme Court of
the United States203. Here, the establishment of the extraterri-
torial courts brought about an extension of the system of extra-
territoriality.
Further extension was the institution of the so-called "Mixed
Court"204. It was not a court composed of judges of different natio-
nalities, nor had it exclusive jurisdiction over mixed cases, that is,
cases involving Chinese and foreigners. According to the treaties,
201. For instance, Article 11 of the Sino-American treaty of 1858.
202. See Willoughby, supra, note 146, Vol. II, pp. 611-613.
203. See ibid, pp. 602-610. In the two appendices there appeared the United
States Revised Statutes Relating to Consular Jurisdiction and the Act Estab-
lishing the United States Court for China, ibid, pp. 641-655.
204. Tyau pointed out that: "In Shanghai, an important trading centre, a
novel system obtains, however, with the foreign settlements. There, in both the
International and French settlements, a mixed court is established", supra, note
131, p. 39.
256 Wang Tieya
cases where the Chinese were defendants were tried in the Chinese
courts and the jurisdiction of the Chinese courts was complete and
exclusive. But, in Article 17 of the Sino-British treaty of Tienjin of
1858, it was provided that when a Chinese had reason to complain
of a British subject, the Consul and Chinese authorities "may to-
gether examine the merits of the case and decide it equitably"205. This
provision was interpreted as indicating "combined action in judicial
proceedings" by the Chefoo Agreement of 1876 which provided in
section II (iii) that the official of the defendant nationality could
attend "to watch the proceedings in the interest of justice. If the
officer so attending be dissatisfied with the proceedings, it will be in
his power to protest against them in detail"206. Then, this interpre-
tation was formalized by the following provision of the Sino-
American Treaty of 1880 which was as follows :
"The properly authorized official of the plaintiffs nationa-
lity shall be freely admitted to attend the trial and shall be
treated with the courtesy due to his position. He shall be
granted all proper facilities for watching the proceedings in the
interest of justice. If he so desires, he shall have the right to
present, to examine, and to cross-examine witnesses. If he is
dissatisfied with the proceedings, he shall be permitted to pro-
test against them in detail" (Article IV)207.
These provisions became the basis upon which the institution of the
so-called "Mixed Court" grew up. It appeared successively in the
foreign settlements and concessions at Shanghai, Amoy, Hankou
and Tienjin. Most notorious was the Shanghai Mixed Court. It
had not only jurisdiction over cases in which Chinese subjects were
defendants, it also tried cases involving Chinese subjects only, since
the Chinese Revolution of 1911 when the Court was taken over by
the Consular Body208.
The system of extraterritoriality constituted the main part of the
whole unequal treaty rgime20i. It created a peculiar judicial system
in China, seriously restricting the judicial power of China and
grossly violating its sovereignty.

206. Ibid., p. 95.
207. Ibid., p. 738.
208. See Lin, supra, note 186, pp. 237-238.
209. The extraterritorial system was sometimes considered as representing the
whole system of unequal treaties, see Vincent, supra, note 193, p. 2.
The unequal treaty system may also be considered as the treaty

port system210. The treaty ports, that is, the ports opened by treaty,
were the centres of the special rights and privileges acquired by
foreign powers under the unequal treaties. They became the centres
for trade and commerce and the places where most of the
foreigners resided permanently. In the ports, foreign settlements and
concessions were designated. There were 40 foreign settlements and
concessions in 19 ports, including notably the International Settle-
ment and the French Concession at Shanghai2". In those treaty
ports where foreign settlements and concessions were situated, par-
ticularly in Shanghai, Xiamen, Hankou and Tienjin, the municipal
administration was dominated by foreigners with special judicial
and police systems and even independent taxation. They formed
enclaves where the foreign residents enjoyed special rights and pri-
vileges under the protection of legations and consulates with mili-
tary barracks and naval forces as their support. They were admit-
ted to the exercise of an imperium in imperio within the dominions
of China. In addition, there were leased territories2I2 and the Lega-
tion Quarter in Beijing a quarter which was specially reserved
for the use of the legations and placed under their exclusive
control213. All these, provided for in the unequal treaties, were
functioning to strengthen the treaty-port system.
It can thus be seen clearly that the dominant factor in the foreign
relations of China at that time was unequal treaties imposed by
Western powers. They brought to China international law which
210. According to Gong, by 1920 there were 69 treaty ports dotted about
China, on the coast and in the interior. They became the symbol of the West in
China, supra, note 54, pp. 141-142.
211. Among the 19 ports, the important ones were Shanghai, Tianjin, Han-
kou, Guangzhou and Xiamen. The settlements and concessions were of four
kinds : exclusive, international, voluntary and by sufferance. The powers which
had settlements and concessions in Chinese ports were : Great Britain, France,
Germany, Russia, Austria, Italy and Japan. The American settlement at
Shanghai had been merged into the Shanghai International Settlement. See
Lin, supra, note 186, pp. 243-246 and 295-298.
212. There were six leased territories: Kiaochow, Port Arthur, Darien, Wei-
haiwei, Guangzhou Bay and Kowloon. See ibid., p. 243.
213. Article VII of the International Protocol of 1901 provided that:
"The quarter occupied by the legations shall be considered as one spe-
cially reserved for their use and placed under their exclusive control, in
which Chinese shall not have the right to reside and which may be made
defensible . . . China recognized the right of each power to maintain a
permanent guard in the said quarter for the defence of its legation. (The
Maritime Customs, supra, note 80, Vol. I, pp. 309-310.)
258 Wang Tieya
they applied among themselves, but they did not apply it to China,
or, they applied only those principles and rules which they could
make use of in their activities of oppression and exploitation. One
thing they insisted on was the sanctity of the unequal treaties2I4.
For them, the main role of international law was to guarantee and
supplement the execution of unequal treaties. On the other side, as
China was weak and restrained by unequal treaties, the Chinese
Government had found no other way of surviving than to honour
them. China could not look to international law for its protection,
whereas to conduct foreign relations in accordance with treaties
was considered as the only way to maintain "peace" with Western
powers and to protect its interests. Xue Fucheng remarked clearly
that, in the intercourse with Western countries, "China can only act
according to treaties, and cannot invoke public law [international
law]"215. Guo Songtao explained in a public letter addressed to the
gentry that although the Chinese were entitled to reject any illegal
request from the West, they should honour the treaties216. Ding
Richang gave the advice that China should adhere to the principle
that the provisions included in the treaties would be implemented
while matters not included would be prohibited217. All these diplo-
mats of the Qing Dynasty reflected the attitude of the Chinese
Government that the Chinese shared an interest with the Western
powers in preserving and maintaining the sanctity of the unequal
treaties2I8. The provisions of the unequal treaties became the basic
rules governing the relations between China and foreign powers
and the unequal treaty rgime remained intact in spite of constant
demands for its abolition.
The unequal treaty rgime which threatened the Chinese tradi-
tional fundamental political and social system was resented by the
214. Chen wrote that :

"When the Western powers came to China, they first put down China's
resistance by force, and then placed China under a rgime of unequal trea-
ties. All relations with China were conducted by reference to these treaties,
and there was no application of such international law as was applied
among themselves",
215. Quoted in ibid., p. 7.
216. Switchett and Fairbank, supra, note 8, Vol. 11, p. 164.
217. Ibid. According to Fairbank, this was the only way that China could
protect her interests.
218. See Gong, supra, note 54, pp. 155-156.
Chinese conservatives. It was a humiliation of China, of being put

on an inferior status. Under the influence of the Western State sys-
tem, the Chinese reformers and their followers adopted the notions
of State, sovereignty and equality. With the rise of nationalism, the
protests against the unequal treaties became more and more vigor-
ous. Extraterritoriality as a sign of national subordination was cri-
ticized as early as in the 1880s when it was considered as inflicted
on China in total disregard of justice and righteousness219. The first
reaction of Western powers was recorded in the Sino-British treaty
of 1902, which provided as follows :
"China having expressed a strong desire to reform her judi-
cial system and to bring it into accord with that of Western
nations, Great Britain agrees to give every assistance to such
reform, and she will also be prepared to relinquish her extra-
territorial rights when she is satisfied that the state of Chinese
laws, the arrangement for their administration, and other
considerations warrant her in so doing" (Article XII)220.
The treaties with the United States and some other Western
countries had provisions to the same effect221.
The First World War and the victory of the Allies provided an
opportunity for abolishing the unequal treaties in China. The
defeated countries were deprived of extraterritorial and other rights
and privileges. At the Peace Conference, however, China failed to
recover Shangdong which was occupied by Japan at the beginning
of the War and its fanciful hope of complete abolition of all un-
equal treaties was utterly frustrated222. High expectations enter-
tained by the Chinese for the Washington Conference of 1921-1922
met with the half-hearted support of Western powers and strenuous
opposition by Japan. The structure of the unequal treaty rgime
219. See Switchett and Fairbank, supra, note 8, Vol. 11, p. 195.
221. The United States (8 October 1903, Article XV) ; Japan (8 October 1903,
Article XI); Portugal (11 November 1904, unratified, Article XVI); and Sweden
(2 July 1908, Article X).
222. The Chinese delegation to the Paris Peace Conference of 1919 had
pledged to seek the recovery of Shantong and complete abolition of the unequal
treaties. "But their exuberant optimism rapidly turned to dismay. They were
coldly told that the peace conference had not been called to adjust all the inter-
national grievances of the past, but to settle problems arising from the con-
clusion of the war", Hsu, supra, note 52, p. 606.
260 Wang Tieya
was not shaken223. The main result of the Conference was the inser-
tion of four general principles in the Nine-Powers Treaty of 6
February 1922: to respect China's territorial integrity and political
independence, to renounce further attempts to seek the sphere of
influence, to respect her neutrality in time of war, and to honour
equal opportunity for all2M.
Sun Yat-sen, the father of the Chinese Revolution, was a strong
advocate of the abolition of unequal treaties. In his Three People's
Principles, the first one, nationalism, called for the removal of the
foreign imperialistic yoke225. Under the influence of Soviet Russia,
the first National Congress of the Kuomintang, of which Sun was
the leader, set in its manifesto as one of the goals of the Kuomin-
tang the abolition of all unequal treaties **, and provided in its Poli-
tical Programme that all unequal treaties, such as foreign leased
territories, consular jurisdiction, foreign-administered maritime
customs, and the exercise of political power by foreigners within
Chinese dominions in violation of the sovereignty of China should
all be rescinded and treaties be renegotiated on the basis of equality
and mutual respect for the sovereignty of both parties227. In 1924,
when Sun made a trip to Beijing, to abolish unequal treaties was
one of his principal political slogans. He died on 12 March 1925
and left a will signed by him urging his comrades to carry on his
unfinished work of convening a National Congress and abolishing
unequal treaties228.
The Kuomintang held high the banner of the will of Sun Yat-
sen. It declared its intention to bring to an end the era of the un-
equal treaties in its resolutions and declarations. The Nationalist
Government in Nanjing stated in its declaration of 6 June 1928 that
the contracting parties of the unequal treaties should "begin at once
to negotiate . . . new treaties on a basis of complete equality and
223. See Hsu, supra, note 52, pp. 639-641.

224. For the Chinese text, see Wang, supra, note 80, Vol. Ill, pp. 217-220;
for the English text, see Carnegie Endowment for International Peace, Treaties
and Agreements With and Concerning China, 1919-1929, Washington, 1929,
pp. 89-93.
225. Lin, supra, note 196, pp. 405-406.
226. Ibid., p. 369; for the English version, see L. Tung, China and Some
Phases of International Law, Shanghai, 1940, p. 34.
227. See Lin, supra, note 196, p. 369 ; for the English version, see Tung, supra,
note 226, p. 33.
228. See Lin, supra, note 196, p. 470; for the English version, see Tung,
mutual respect for each other's sovereignty"229. Following this, the

Chinese Ministry of Foreign Affairs made a more specific declara-
tion on 7 July 1928, stating that :
"(1) All unequal treaties between the Republic of China and
other countries which have already expired shall ipso
facto be abrogated and new treaties shall be concluded.
(2) The Nationalist Government will immediately take steps
to terminate, in accordance with proper procedure, those
unequal treaties which have not yet expired and conclude
new treaties.
(3) In the case of the old treaties which have already expired
but have not yet been replaced by new treaties, the
Nationalist Government will promulgate appropriate
regulations to meet the exigencies of the new situation230."
Negotiations with various countries met with no concrete results.
What the Kuomintang and its government could do was for the
National Congress to make a declaration on 17 May 1931 that "all
unequal treaties previously imposed upon China by various coun-
tries would not be recognized by the Chinese nationals"231.
Hope revived during the Second World War. China declared in
its declaration of war against Japan, Germany and Italy on 9 De-
cember 1941, immediately after the outbreak of the Pacific War,
that all unequal treaties concluded with these countries were ex
facto null and void m. Under the initiative of the Chinese Foreign
Ministry, negotiations with the United States and Great Britain
began in 1941 for relinquishing their extraterritorial rights in
China. They first promised to do it immediately after peace was
restored233 and then decided to carry out negotiations for conclu-
ding treaties for immediate relinquishment of extraterritorial rights
229. The Declarations of the Nationalist Government, 11 July 1925, 20 Sep-

tember 1927, 7 June 1928 ; the Declarations of the Ministry of Foreign Affairs,
11 May 1927, 2 November 1927, 7 July 1928; and the Declaration of the
National Congress, 17 May 1931. For all these declarations, see Lin, supra,
note 196, pp. 424-439.
230. Ibid., p. 436.
231. Ibid, p. 439.
232. See Wang Tieya, War and Treaties (in Chinese), Chongqing, 1944, p. 20.
233. See Lin, supra, note 196, pp. 516-522, for the exchange of letters by the
Chinese Minister for Foreign Affairs and the United States Secretary of State,
26 and 31 May 1941, and exchange of notes between the British Ambassador
and the Chinese Minister for Foreign Affairs, 4 and 12 July 1941.
262 Wang Tieya
and other related practices234. Finally, treaties were signed on 11

January 1943, which contained the relinquishment of the following
rights and privileges: (1) consular jurisdiction ; (2) Legation Quar-
ter and legation guard ; (3) settlements and concessions ; (4) special
courts; (5) foreign pilotage; (6) foreign warships; (7) British
Inspector-General of Customs ; (8) coastal trade and inland naviga-
tion; (9) other problems which affected the sovereignty of China235.
These two treaties were followed by others236 and the unequal
treaty rgime was fatally wrecked.
At last, the death knell of the unequal treaty rgime was sounded
at the founding of the PRC. In Article 55 of the Common Pro-
gramme of the Chinese People's Political Consultative Conference
of 29 September 1949 it was provided that
"The Central People's Government of the People's Republic
of China must study the treaties and agreements concluded by
the Kuomintang government with foreign governments and,
depending on their contents, recognize, annul, revise or re-
conclude them237."
At the occasion of the founding of the PRC, the Chairman of the
Central People's Government declared in the proclamation of 1
October 1949, that the Government was willing to establish diplo-
matic relations with any foreign government which observed the
principles of "equality, mutual benefit, and mutual respect for terri-
torial sovereignty"238. These provisions furnish the basis upon
which the PRC conducts its relations with foreign countries.
234. Lin, supra, note 196, pp. 526-528, for the declarations of the Acting
Secretary of State and the British Government issued on 9 October 1942,
expressing the decision of both Governments to carry out immediately the
negotiations.
235. For the Chinese texts of these treaties, see Wang, supra, note 80, Vol.
Ill, pp. 1256-1272 ; for the English texts, see United Nations Treaty Series, Vol.
10 II, pp. 262-268 and the Waichaopu, White Book: Sino-British Treaty on the
Abolition of Exterritoriality and Related Rights in China, Chongqing, 1943.
For the discussion of these treaties, see Wang Tieya, Studies on New Treaties (in
Chinese), Chongqing, 1943, pp. 39-79.
236. They were: with Belgium, 20 October 1943; Norway, 10 November
1943; Canada, 14 April 1944; Sweden, 5 April 1945; the Netherlands, 29 May
1945; France, 28 February 1946; Switzerland, 13 March 1946; Denmark, 20
May 1946; and Portugal, 1 April 1947.
237. Collection of Documents Relating to the Foreign Relations of the PRC
(Collection of Documents) (in Chinese), Vol. 1, 1949-1950, Beijing, 1957, p. 1.
238. Ibid., p. 4.
263
CHAPTER III
SOME ASPECTS OF THE CONTEMPORARY CHINESE

PERSPECTIVE OF INTERNATIONAL LAW :
(I) FIVE PRINCIPLES OF PEACEFUL COEXISTENCE
1. Origin and Development

The enunciation of the Five Principles of Peaceful Coexistence is
one of the major contributions made by the PRC since its estab-
lishment to the development of international law. The Five Prin-
ciples were initially declared in the Preamble of the Agreement
between the PRC and the Republic of India on the Trade and
Intercourse Between the Tibet Region of China and India of 29
April 1954V9, which stated that both countries resolved to base
their relations upon the following principles :
"(a) mutual respect for each other's territorial integrity and
sovereignty ;
(b) mutual non-aggression ;
(c) mutual non-interference in each other's internal affairs ;
(d) equality and mutual benefit ;
(e) peaceful coexistence."
The Joint Statement made by the Prime Ministers of the two
countries on 28 June of the same year stated that these principles
"should be applied in their relations with countries in Asia, as
well as in other parts of the world" and "in international relations
generally"240. Next day, on 29 June, a Joint Statement was signed
by the Prime Ministers of the PRC and the Union of Burma, stating
that the Five Principles which China and India agreed to guide
their relations should also be principles guiding the relations be-
tween China and Burma, and it added that "if these principles could
be observed by all countries, then the peaceful existence of coun-
tries of different social systems could be assured"241.
239. Treaty Series of the PAC (Treaty Series) (in Chinese), Vol. 3, 1954, p. 1.
240. Ibid, p. 8.
241. Ibid., p. 13.
264 Wang Tieya
It may be noted that three principles of the Five Principles, that

is, equality, mutual benefit and mutual respect of territorial
sovereignty have been provided in the Common Programme of
the Chinese People's Political Consultative Conference of 29 Septem-
ber 1949242, and indicated in the Proclamation of 1 October 1949
which announced the founding of the PRC w, as bases upon which
China should establish its diplomatic relations with foreign coun-
tries. This formula of three principles was later confirmed in the
Preamble of the first Constitution of the People's Republic of
China of 20 September 1954 w. In the first treaty concluded by the
PRC, that is, the Sino-Soviet Treaty of Friendship, Alliance and
Mutual Assistance, of 14 February 1950, it was provided that both
parties engaged to develop and solidify the economic and cultural
relations of China and the Soviet Union "in accordance with the
principles of equality, mutual benefit, mutual respect for national
sovereignty and territorial integrity, and non-intervention in the
internal affairs of the other party" (Article 5)245. It is obvious that
the Chinese Premier Zhou En-lai had all these principles in mind
when he initiated, with Indian Premier Jawaharlal Nehru, the Five
Principles of Peaceful Coexistence in the Sino-Indian Agreement of
1954.
Apparently, the Five Principles of Peaceful Coexistence had its
more direct inspiration from the Charter of the United Nations. In
the Preamble of the Charter, the peoples of the United Nations
express their determination "to practise tolerance" and to "live
together in peace with one another as good neighbours" a
phrase, having the same meaning as "peaceful coexistence". In Article
2 of the Charter, it is provided that the United Nations and its
members "shall act in accordance with the following principles".
1. The principle of sovereign equality.
2. Fulfillment in good faith of international obligations.
3. Peaceful settlement of international disputes.
242. Collection of Documents, supra, note 139, p. 1.

243. Ibid., p. 4.
244. Ibid., Vol. 3, 1958, p. 1. Zhou Gengsheng, "Peaceful Coexistence in
International Law" (in Chinese), in Studies of Politics and Law, No. 6, 1955,
p. 37, in which he said that the Five Principles had their origin in the three
principles enunciated in the 1949 Common Programme and later expounded in
the Preamble of the Constitution.
245. Treaty Series, Vol. 1, 1949-1951, p. 2.
4. Refraining from the threat or use of force against the territorial

integrity or political independence of any State.
5. Giving assistance to the action which the United Nations takes
and refraining from giving assistance to any State against which
the United Nations is taking preventive or enforcement action.
6. Acting in accordance with these principles by non-member
States.
7. Non-intervention in matters which are essentially within the
domestic jurisdiction of any State.
These seven principles of the Charter reflect the desire and
demands of the peoples of the world after the Second World War.
Though originally intended to mainly apply to the United Nations
and its Members, they acquired from the outset the character of
universal application. They gained the whole-hearted support of
the PRC since its founding, even before it took its legitimate seat in
the United Nations. Premier Zhou En-lai stated clearly that : "The
Chinese people have consistently supported the purposes and prin-
ciples of the United Nations Charter"246. Ever since their first enun-
ciation, the Five Principles of Peaceful Coexistence had their
natural link with the principles of the United Nations.
The Five Principles acquired celebrity soon after the conclusion
of the Sino-Indian Agreement of 1954. They were embodied in
many treaties and agreements, both bilateral and multilateral, and
other international legal instruments, including declarations of
governments and resolutions of international bodies, and appeared
in many press conferences, speeches of statesmen, etc.M7 It has been
estimated that from 1954 to 1985, the number reached more than
90, but it can hardly be possible to enumerate them exhaustively in
246. Collection of Documents, supra, note 139, Vol. 3, 1954-1955, p. 271.

Dong Biwu, one of the Chinese delegates appointed by the Chinese Communist
Party who had affixed his signature to the Charter said in his article: "The
Tenth Anniversary of the United Nations", People's China, No. 14, 1955,
pp. 6-8, that :
"The purposes and principles provided in the Charter are in conformity
with the peoples of all countries of the world that peace be maintained .. .
That is why we [the Chinese people] give full support to the purposes and
principles of the United Nations and place great hopes in it."
See Samuel S. Kim, China, the United Nations, and World Order, Princeton,
1979, p. 408.
247. See Lazar Focsaneanu, "Les cinq principes de coexistence et le droit
international", Annuaire f ranais de droit international, 1956, p. 152.
266 Wang Tieya
a list248. What is certain is that they have been accepted by a great

number of States in the world24'.
The Five Principles originally appeared as principles of coexis-
tence applying only to relations between States with different social
systems. The Soviet Union has particularly tried to limit their scope
of application and to avoid their application to the relationships
between herself and Eastern European countries, on the ground
that they are countries with similar social systems and relations
between socialist countries should apply other principles than those
of peaceful coexistence. But, from the very beginning, the Five
Principles were meant to apply in all parts of the world. There is no
reason to exclude the socialist countries from their application. The
Soviet Union had to admit in its Declaration of 30 October 1956
that the Five Principles should be accepted in her relationships
with Eastern European countries250. Two days later, in response to
the Soviet Union, the Chinese Government made its Statement on
1 November 1956, emphasizing that China had consistently held that
the Five Principles "should become the norms of all countries, the
world over in establishing and developing their ties with each other"
and that "the socialist countries in this regard should be more
observant of the Five Principles in their mutual relationships"251.
It is now settled that the Five Principles should apply to the rela-
248. Focsaneanu, op. cit., pp. 153-156, the author has given a list of (a) 4
international treaties, (b) 40 bilateral and multilateral declarations and joint
communiqus, and (c) 30 unilateral declarations, reports, speeches, talks and
interviews. See also Ian Brownlie, International Law and the Use of Force,
London, 1963, Part I, Chapter VI, Appendix I, Instruments affirming the Five
Principles of Peaceful Coexistence, pp. 123-126.
249. The instruments affirming the Five Principles of Peaceful Coexistence
given by Brownlie, supra, note 248, pp. 123-126, involved the following coun-
tries: In Asia: Afghanistan, Burma, Cambodia, Ceylon (Sri Lanka), People's
Republic of China, India, Indonesia, People's Republic of Korea, Laos, Mongo-
lia, Nepal, Saudi Arabia, Thailand, United Arab Republic and Vietnam; in
Africa: Dahomey, Egypt, Ethiopia, Ghana, Guinea, Liberia and Sudan; in
Europe : Albania, Austria, Belgium, Bulgaria, Czechoslovakia, Finland, France,
German Democratic Republic, Hungary, Poland, Romania, USSR and Yugo-
slavia ; and in North America : the United States.
250. Collection of Documents, Vol. 4, 1956-1957, pp. 150-153. The Declara-
tion stated that the mutual relations between the socialist countries "can be built
only on the principles of complete equality, respect for each other's territorial
integrity, State independence and sovereignty and non-interference in each
other's internal affairs", ibid., pp. 150-151.
251. Ibid., p. 149. The Statement asserted that:
"The People's Republic of China maintained that the five principles of
mutual respect for sovereignty and territorial integrity, non-aggression,
non-intervention in each other's internal affairs, equality and mutual bene-
tionships between both countries of different social systems and

those of like social systems and should furnish the basis upon which
all countries could live in peace and co-operate on friendly terms.
The major development of the Five Principles of Peaceful
Coexistence took place at the Bandung Conference held in 1955252.
Twenty-nine Asian and African countries participated. During the
Conference, Zhou En-lai, the head of the Chinese delegation, fully
elaborated, in his main speech made on 19 April 1955, the contents
and the spirit of the Five Principles35i. After discussions, the Final
Communiqu was issued on 24 April 1955, in which was included
the Declaration on the Promotion of World Peace and Co-
operation254. The Declaration set forth the following well-known
ten principles of Bandung :
1. Respect for fundamental human rights and for the purposes
and principles of the Charter of the United Nations.
2. Respect for the sovereignty and territorial integrity of all
States.
3. Recognition of equality of all nations and of all States, big and
small.
4. Abstention from interference or intervention in the internal
affairs of other States.
5. Respect for the right of each nation to defend itself singly or col-
lectively, in conformity with the Charter of the United Nations.
6. Abstention from the use of arrangements of collective defence
to serve the particular interest of any of the big powers. Ab-
stention from exerting pressure by any country on other
countries.
7. Abstention from acts or threat of aggression or the use of force
against the territorial integrity or political independence of any
States.
8. Settlement of all international disputes by peaceful means,
fit, and peaceful coexistence should be the principles governing the estab-
lishment and development of mutual relations among the nations of the
world. The socialist countries are all independent, sovereign States. In the
same time, they are united by the common ideal of socialism and the spirit
of proletarian internationalism. Consequently, there is all the more reason
why mutual relations between socialist countries should be established on
the basis on these five principles..."
252. Brownlie, supra, note 248, pp. 119-120.
253. Collection of Documents, Vol. 3, 1954-1955, pp. 243-249.
254. Ibid, pp. 261-262.
268 Wang Teya
such as negotiation, conciliation, arbitration or judicial settle-

ment as well as other peaceful means of the parties' choice, in
conformity with the Charter of the United Nations.
9. Promotion of mutual interests and co-operation.
10. Respect for justice and international obligations.
These ten principles incorporated nearly the whole of the Five
Principles of Peaceful Coexistence. Five of the ten principles (Prin-
ciples 2, 3, 4, 7 and 9) were equivalent to the first four of the Five
Principles. The rest were, in the main, a paraphrase of the relevant
provisions of the United Nations with the exception of Principle 6,
which was inserted in view of the SEATO alliance255. Zhou En-lai
had aptly pointed out in his report to the Standing Committee of
the Chinese People's National Congress after the conclusion of the
Bandung Conference on 13 May 1955 that "the Ten Principles of
the Declaration of the Asian African Conference are the extension
and development of the Five Principles of Peaceful Coexistence"256.
At the same time, another important development began in the
General Assembly of the United Nations. As early as in 1957,
under the initiative of the Soviet Union, an item entitled "Consi-
deration of a Declaration concerning Peaceful Coexistence" was
placed on the agenda of the 12th Session of the General Assembly257.
The resolution passed by the General Assembly, though not
expressly mentioning the Five Principles of Peaceful Coexistence,
called on the member States
"to develop, in conformity with the Charter, peaceful and
tolerant relations among States on the basis of mutual respect
and benefit, non-aggression, respect for each other's sovereign
equality and territorial integrity, and non-intervention in each
other's internal affairs258".
255. "The Five Principles of Peaceful Coexistence had an obvious imprint
upon the 1955 Asian-African Conference at Bandung and Its Ten Principles."
E. McWhinney, "The 'New' Countries and 'New' International Law", in AJIL,
Vol. 60, p. 2.
256. Collection of Documents, Vol. 3,1955-1956, p. 269.
257. In the Soviet explanatory memorandum, it was stated that the procla-
mation of the principles of peaceful coexistence, particularly as reiterated at the
Bandung Conference, had exerted a favourable influence on the development of
relations among the countries recognizing these principles, and an appeal by
the General Assembly that the United Nations members be guided in their mu-
tual relations by those principles would improve the international situation
markedly. The United Nations Yearbook, 1957, p. 105.
258. Ibid., p. 106.
The fact that these principles were included in the resolution of

the General Assembly constituted really "a significant step in the
evolution of the Five Principles since their formal inception in
1954259
More importantly, in 1961, at the 16th Session of the General
Assembly, 12 Asian, African and East European countries reques-
ted that an item entitled "Consideration of Principles of Interna-
tional Law concerning Peaceful Coexistence Among States" be placed
on the agenda260. Due to the objection of some Western countries
against the use of "peaceful coexistence among States", the phrase
was changed to "friendly relations and co-operation among States
in accordance with the Charter of the United Nations"261. However,
a resolution was passed by the General Assembly which decided to
take up the work of codifying such principles of international law
and in 1963, a special committee was set up for the drafting of
these principles262. After about ten years of deliberation in the
Sixth Committee of the General Assembly and the Special Com-
mittee, at last, in 1970, the "Declaration on Principles of Inter-
national Law concerning Friendly Relations and Co-operation be-
tween States in Accordance with the Charter of the United Nations"
was adopted by acclamation by the General Assembly at its 20th
Session263.
The Declaration set forth seven principles of international law as
follows :
1. The principle that States shall refrain in their international re-
lations from the threat or use of force against the territorial in-
tegrity or political independence of any State, or in any manner
inconsistent with the purposes of the United Nations.
2. The principle that States shall settle their international disputes
by peaceful means in such a manner that international peace
and security and justice are not endangered.
3. The duty not to intervene in matters within the domestic juris-
diction of any State, in accordance with the Charter.
259. Russell H. Fifield, "The Five Principles of Peaceful Coexistence", in

AJIL, Vol. 52, 1958, p. 505.
260. See United Nations Yearbook, 1962, pp. 487-488.
261. See ibid.
262. Resolution 1963 (XVIII), ibid., 1963, p. 518.
263. Resolution 2625 (XXV), adopted without vote, ibid., 1970, pp. 784-788;
text of the Declaration, ibid, pp. 789-792.
270 Wang Tieya
4. The duty of States to co-operate with one another in accordance

with the Charter.
5. The principle of equal rights and self-determination of peoples.
6. The principle of sovereign equality of States.
7. The principle that States shall fulfill in good faith the obliga-
tions assumed by them in accordance with the Charter.
It can be seen that the purpose of the Declaration was to serve the
realization of the purposes of the United Nations and the elabora-
tion of its principles as provided in Article 2 of the Charter. It is
also clear that the principles of international law enumerated in the
Declaration had close connections with the Five Principles of
Peaceful Coexistence and the Ten Principles of Bandung. In a sense,
the efforts of the Third World countries in formulating the 1970
Declaration on Principles of International Law, as said by one
Western scholar, was to try "to put flesh on the bare bones of the
five primary principles of peaceful coexistence as postulated in the
original Pancha Shila declaration"264.
Among the other declarations adopted by the General Assembly
of the United Nations which enunciated principles governing rela-
tions among States, the Charter of Economic Rights and Duties of
States of 12 December 1974 should be noted265. In the Charter, 15
principles were enumerated as "Fundamentals of International
Economic Relations" to guide the economic as well as political and
other relations. Among the principles enumerated, the first six
incorporated almost phrase by phrase the Five Principles of Peace-
ful Coexistence, except that the principle of equality and mutual
benefit of the Five Principles was divided into two in the Charter :
the principle of sovereign equality and the principle of equality
and mutual benefit. It has been argued that the Charter could have
no legal effect, not only because it was of a recommendatory
nature, but that, by casting dissenting votes, all the economically
powerful member States had objected to it266. It cannot be denied,
however, that the Charter was an important international legal in-
strument supported by an overwhelming majority of member States
264. McWhinney, supra, note 255, p. 2.

265. For the text of the Charter, see United Nations Yearbook, 1974,
pp. 403^07.
266. The following member States voted against : Belgium, Denmark, West
Germany, Luxembourg, United Kingdom and United States, ibid., pp. 402-403.
of the United Nations267. As such, it made a valuable contribution

in reiterating the Five Principles of Peaceful Coexistence268.
2. Five Principles as Fundamental Principles of

International Law
The significance of the Five Principles of Peaceful Coexistence is
that they constitute the fundamental principles of international law.
Since the Second World War, as international relations have radi-
cally changed, there was the need for restructuring international
society and reconstructing the system of international law269. The
enunciation of the Five Principles is one of the efforts to meet such
a need. In complementing the principles enshrined in the Charter of
the United Nations, they are the first attempt to establish and de-
velop principles upon which international relations are based. They
hold an important position in the development of the fundamental
principles of international law as they have much impact on the
later formulations of the Ten Principles of Bandung of 1955, the
Seven Principles of the Declaration on the Principles of Internatio-
nal Law of 1970 as well as the 15 principles in the Economic Char-
ter of 1974. The Five Principles may be said to have the same rank
as the seven principles of the Charter of the United Nations m.
The Five Principles have been characterized as Asian principles
of international relations constituting an Asian regional doctrine of
international law271. The reasons given are that they were initiated
by two great Asian countries, China and India, and were supported
by nearly all the countries in Asia. However, the territorial scope of
the Five Principles was not confined to Asia. They developed very
rapidly and extended to cover different parts of the world. Coun-
tries in Africa were included as shown by the Bandung Asian-
267. 120 members in favour, ibid., pp. 402-403.
268. Chen, supra, note 128, p. 24.
269. R. St. J. Macdonald pointed out that :
"the need for some overarching rules to establish order in international
society became apparent . . . In 1988, it is almost commonplace to find
references in the literature and in State opinions to certain treaty norms as
possessing a fundamental character." ("Fundamental Norms in Contem-
porary International Law", in The Canadian Yearbook of International Law,
Vol. XXV, 1987, pp. 118-119.)
270. See Brownlie, supra, note 248, p. 119.
271. Focsaneanu, supra, note 247, p. 165.
272 Wang Tieya
African Conference of 1955. The affiliation of the non-aligned

movement to the Five Principles was shown in the resolutions of its
Summit meetings m. Even those countries which manifested reluc-
tance to recognize them had accepted them expressly. The United
States, in the Joint Communiqu of 27 February 1972 with the
PRC, formally accepted the Five Principles as the basis upon which
to manage the relationships between States273. Japan followed
suit. The Sino-Japanese Joint Statement of 29 September 1972
and the Sino-Japanese Treaty of Peace and Amity of 12 August
1978, confirmed that both parties resolved to establish and develop
their relationship on the basis of the Five Principles m. Zhou En-lai
was justified in saying in the press conference held on 27 June 1954,
during his visit to India after the conclusion of the Sino-Indian
Agreement of 1954 that, based on the Five Principles, all countries,
big and small, rich and poor, strong and weak, and regardless of
their social systems being different or alike, could coexist peace-
fully275.
It is generally admitted that in every legal system, there must be
certain ultimate principles from which all others are derived276. In
the Chinese legal system, this is much emphasized. In the Constitu-
tion, for instance, the Constitution of 1982 contains a special chap-
ter on General Principles277 and in the sphere of civil law, a special
law was enacted, entitled the General Principles of Civil Law, set-
ting forth governing principles relating to civil matters. And in
nearly all other branches of the law, there are general principles or
"General Provisions" before the enactment of other principles and
272. For instance, the Summit Conference of the Non-Aligned Countries in

1962. Part IV of the Declaration issued by the Conference is entitled "Peaceful
Coexistence and the Codification of its Principles by the United Nations, in
which the Heads of State and Government solemnly proclaimed the fundamen-
tal principles of peaceful coexistence. See Documents of the Gatherings of Non-
Aligned Countries, 1961-1978, Belgrade, 1978, p. 23.
273. Treaty Series, Vol. 19, 1972, pp. 20-24, and Vol. 26, 1979, pp. 7-8.
274. Treaty Series, Vol. 19, 1972, pp. 6-8, and Vol. 25, 1978, pp. 1-2.
275. Collection of Documents, 1954, p. 111.
276. H. Lauterpacht has quoted Salmond as saying that "there must be found
in every legal system certain ultimate principles, from which all others are de-
rived, but which are themselves self-evident", international Law Being the Collec-
ted Papers of Hersch Lauterpacht, edited by E. Lauterpacht, Vol. I, The
General Work, London, 1970, p. 90, note 1.
277. The Laws of the People's Republic of China, 1979-1982, compiled by the
Legislative Affairs Commission of the Standing Committee of the National
People's Congress of the PRC, Beijing, 1989, pp. 6-11.
rules278. The function of the "General Principles" or "General Pro-

visions" is usually stated as the basis of the whole of the laws and is
considered as the guidelines by which various legal provisions are
interpreted, implemented and developed m. The same is the case of
international law where the fundamental principles are consistently
regarded as the basis of the whole system of international law.
Nearly all the textbooks on international law written by Chinese
scholars have a special chapter devoted to the fundamental princi-
ples of international law in which the Five Principles of Peaceful
Coexistence are given prominence280. The concept of the funda-
mental principles of international law, that there are certain princi-
ples of fundamental character in international law, has been most
frequently resorted to since the Second World War, as testified by
Macdonald when he said in a recent article that
"During the last 20 years or so there has been a trend in the
literature of international law, in judicial practice, and in State
utterances to regard certain norms of international law as
fundamental or of constitutional nature281."
The Five Principles of Peaceful Coexistence are apparently the
fundamental principles by their nature, if not the only ones.
Schwarzenberger had made an intensive study of the problem of
the fundamental principles of international law, the first study ever
undertaken by an international lawyer282. He sets out for himself
the task "to elaborate the fundamental, as distinct from the more
278. The Laws of the People's Republic of China, 1983-1986, compiled by the
Legislative Affairs Commission of the Standing Committee of the National
People's Congress of the PRC, Beijing, 1989, p. 226.
279. See Zhang Guangxing (ed.), Civil Law, Beijing, 1988, where he sets forth
three different views on the fundamental principles of the civil law, but the views
are basically similar, p. 80.
280. For instance, International Law: A Textbook, edited by Wang Tieya,
Beijing, 1981, pp. 48-83 (written by Wei Ming and Liu Zhenjiang); International
Law, edited by Duanmu Zheng, Beijing, 1989, pp. 44-70 (written by Shi
Daxing). Zhou Gengsheng, International Law, 2 vols., Beijing, 1981, had no
special chapter on the fundamental principles of international law, but he
treated them separately under the topic of the fundamental rights of duties of
States, pp. 167-248.
281. R. St. J. Macdonald, supra, note 269, p. 135.
282. Georg Schwarzenberger, "The Fundamental Principles of International
Law", in Collected Courses, Vol. 87, 1955-1. See also Georg Schwarzenberger,
"The Principles and Standards of International Economic Law", in Collected
Courses, Vol. 117, 1966-1, and "The Principles of the United Nations in Interna-
tional Judicial Perspective", in Yearbook of World Affairs, Vol. 30, 1976.
274 Wang Tieya
subordinate, principles of international law"283. The fundamental

principles of international law, according to him, are "those princi-
ples of international law which represent the highest common
denominator of relevant rules"284. He proposes to apply three tests
to decide whether any individual principle of international law may
be regarded as fundamental ; they are :
1. The principle must be especially for international law.
2. The principle must stand out from others by covering a rela-
tively wide range of rules of international law which appear to
fall naturally under its heading.
3. The principle must be one which is either so typical of interna-
tional law that it is an essential part of any known system of
international law or so characteristic of existing international
law that if it were ignored, we would be in danger of losing sight
of an essential feature of modern international law285.
Without inquiring into the proposal made by Schwarzenberger,
one can easily judge that each of the Five Principles of Peaceful
Coexistence can pass the three tests without any difficulty and be
classified as fundamental principles of international law. What
remains to be remembered is that the Five Principles of Peaceful
Coexistence are fundamental principles in the sense that they are
not fundamental principles of a special branch of international law,
but of the whole system of international law286.
A Soviet scholar of international law, Talaojew, also made a
special study of the fundamental principles of international law287.
He considers that the fundamental principles in question possess
the following characteristics :
1. They consist of important and essential norms.
2. They are general in character.
3. They are always generally recognized norms binding on all
States whatever social class they belong to.
283. Schwarzenberger, "The Fundamental Principles of International Law",

284. Ibid.
285. Ibid., p. 204.
286. See Wang, supra, note 280, p. 46.
287. See Erik Suy, "The Concept of Jus Cogens in Public International
Law", in Conference on International Law, Legonissi, Greece, 3-8 April 1966,
Papers and Proceedings II: The Concept of Jus Cogens in International Law,
Geneva, 1967.
There is no question that the Five Principles of Peaceful Coexis-

tence are important essential principles, they are general in charac-
ter, and they are always generally recognized principles, binding on
all States with whatever social systems.
The concept of the fundamental principles of international law
has long been mentioned by international lawyers. Hall mentioned
the fundamental principles of international law when he discussed
the validity of international agreements288. More recently, A.
Pearce Higgins advised that international lawyers "have to go
down to foundations, to the fundamental principles which unite the
positive rules"289. Lauterpacht in presenting the report on the law
of treaties to the International Law Commission in 1953 spoke of
"overriding principles of international law"290. The difficulty is,
however, to define the concept. Chinese scholars, taking the Five
Principles of Peaceful Coexistence as fundamental principles of
international law, try to define them as those principles recognized
by all States, of universal character and thus constituting the basis
of international law291. This definition is rather indicating the main
characteristics of the concept.
Another difficulty is the question: which are the fundamental
principles of international law. In addition to the Five Principles of
Peaceful Coexistence, the seven principles of the United Nations,
the ten principles of Bandung, the seven principles of the Declara-
tion on Principles of International Law, and the fifteen principles
of the Economic Charter, all may be said to be the fundamental
principles of international law. Some scholars try to present their
own enumeration. Schwarzenberger selects the following seven
principles: (1) sovereignty; (2) recognition; (3) consent; (4) good
faith ; (5) self-defence ; (6) international responsibility ; (7) the free-
dom of the seas292. In Tunkin's opinion, in addition to the traditio-
nal fundamental principles of international law, new ones emerged
after the Second World War, which are: (1) non-aggression; (2)
peaceful settlement of disputes ; (3) self-determination of peoples ;
288. W. E. Hall, International Law, 8th ed., London, 1924, p. 382.

289. A. Pearce Higgins, "The Duty of States", in Proceedings of the Ameri-
can Society of International Law, 1927, p. 17.
290. Yearbook of the International Law Commission, 1953, Vol. 2, p. 155.,
291. See, for instance, Wang, supra, note 280, p. 46; Duanmu, supra, note
280, pp. 44-47.
276 Wang Tieya
(4) peaceful coexistence; (5) disarmament; (6) respect for human

rights; (7) the prohibition of war propaganda293. It must be
admitted that there is no unanimity with regard to the number and
the identity of the fundamental principles of international law.
They are still in the stage of development. Therefore, the Five
Principles of Peaceful Coexistence do not exclude other principles
from being characterized as fundamental. According to Chinese
scholars, they constitute the core, or at least the main part, of the
fundamental principles of international law294. Other fundamental
principles must be admitted when they are incorporated in legally
binding international instruments. As a matter of fact, the Five
Principles are themselves flexible. They were sometimes contrac-
ted or reduced to two or four principles, or amplified or expan-
ded to seven or ten principles295. In the Declaration of Ban-
dung of 1955, such principles as those relating to human rights,
racial equality, self-defence, peaceful settlement of international
disputes and respect for justice and international obligations are
added.
It has sometimes been said that the principles of pacific coexis-
tence between States are too general to be able to serve as a solid
foundation for the solution of practical problems296. Like other
fundamental principles of international law, the Five Principles of
Peaceful Coexistence are, in essence, general principles, and not
specific and actual rules applying to concrete and particular cases
or conflicts. As legal principles are abstractions and generalizations
from individual cases or actual rules of more limited scope, the
fundamental principles are those abstractions on a higher level
from which all other principles and rules derive297. They impose
293. G. I. Tunkin, Theory of International Law, translated by William E.

Butler, Cambridge, 1974, pp. 49-86.
294. See Wang, supra, note 280, p. 82. In Duanmu, supra, pp. 53-70, three
other principles are added to the Five Principles of Peaceful Coexistence and
they are : the principle of national self-determination, the principle of peaceful
settlement of international disputes, and the principle of scrupulous observance
of international obligations. In Soviet Literature, there is also no agreement as
to the number and identity of the fundamental principles of international law,
see Bernard Ramundo, Peaceful Coexistence and International Law, Baltimore,
1967, p. 30.
295. Focsaneanu, supra, note 247, p. 119.
296. Suy, "Consensus", in Rudolf Bernhardt (ed.), Encyclopaedia of Public
International Law, Vol. 7, p. 74.
supra, note 282, pp. 202-203.
general obligations on all States, and furnish the criterion of all

other principles and rulesM8. Thus, the fundamental principles may
be said to lay down or do firmly link with the foundation of the
whole system of international law. They are aptly called by
Schwarzenberger "the pillars of international law"299. It is in this
sense that the formulation of the Five Principles of Peaceful
Coexistence was acclaimed as opening a new phase of international
relations 30.
It has also been said that the Five Principles of Peaceful Coexis-
tence meant little in international law, because they "express no
more than the basic principles of classical international law"301. In
an extensive study of the Five Principles of Peaceful Coexistence,
Focsaneanu after analysing the principles one by one, expressed his
idea that four of the five principles were only "repeating the
pre-existing rules of international law", while the remaining one was
new only in a limited sense m. It is true that most of the principles
contained in the Five Principles of Peaceful Coexistence are princi-
ples which existed at the time of their formulation303. The first three
principles, the principle of sovereignty and territorial integrity, the
principle of non-aggression and the principle of non-intervention
are principles of international customary or conventional law
governing the relations between States before the signing of the
Sino-Indian Agreement of 1954. They are all traditional principles
reaffirmed by the Charter of the United Nations and other interna-
tional legal instruments. The fifth principle is not a new one either,
if the expression "peaceful coexistence" is taken to mean inter-
national co-operation. Only the fourth principle has acquired some
298. A Soviet scholar pointed out that the fundamental principles of interna-
tional law constitute "the criterion of legality of all other norms elaborated by
States in their international relations", and "all the other norms of international
law must conform to the fundamental principles", quoted in Suy, supra, note
287, p. 46.
300. It was pointed out by Francis Watson that the formulation of the Five
Principles "was widely interpreted as opening a new phase and marking a new
kind of accord", The Frontiers of China, p. 83, quoted by William L. Tung,
China and the Foreign Powers: The Impact of and Reaction to Unequal
Treaties, New York, 1970, p. 392.
301. Wolfgang Friedmann, The Changing Structure of International Law,
New York, 1964, p. 322.
302. Focsaneanu, supra, note 247, pp. 170, 177-178.
278 Wang Tieya
novelty by linking equality with mutual benefit and thus empha-

sizing the economic aspect of equality. In spite of this, however, it
cannot be denied that the enunciation of the Five Principles of
Peaceful Coexistence makes a significant contribution to the de-
velopment of the fundamental principles of international law. Its
contribution consists of, first, putting the five important principles
of international law together to form a systematic and cohesive
whole, which lay down the foundation of international law;
second, mutual respect for sovereignty and territorial integrity is a
formulation which gives prominence to the concept of mutuality
and makes clear that sovereignty is principally of relative charac-
ter ; and, third, linking equality and mutual benefit has the effect
of combining juridical equality with economic equality so that
equality is substantive rather than formal304.
It remains to be mentioned that there have been attempts to dis-
credit the legal significance of the Five Principles of Peaceful
Coexistence. They are viewed as representing a political doctrine
only and their declaration is but a political manifesto for the pur-
pose of propaganda305. However, the objection itself is made purely
on political prejudice306. The fact that the principles contained in
the Five Principles of Peaceful Coexistence are legal principles,
cannot be easily denied. As quoted by Brownlie, the American
representative in the United Nations, Henry Cabot Lodge, had
observed that "these principles stated in another way, are what we
are all committed to by our adherence to the Charter of the United
Nations"307. These principles have in fact been stipulated in various
treaties and agreements as binding obligations. As mentioned
above, the United States has recognized them as the basis upon
which to manage the relations between States in the Sino-American
Joint Communiqu of 27 February 1972, and similar provisions
have been found in the Sino-Japanese Joint statement of 29 Sep-
tember 1972 and the Sino-Japanese Treaty of Amity of 12 August
1976.
304. Chen, supra, note 128, pp. 24-26. See, further, Wei Ming, "The Signifi-
cance of the Five Principles of Peaceful Coexistence in Contemporary Interna-
tional Law" (in Chinese), in Chinese Yearbook of International Law, 1985, pp.
241-245; Shao Tianren, "Five Principles of Peaceful Coexistence Basis for
Contemporary International Law" (in Chinese), in ibid., pp. 336-339.
305. See, for example, Friedmann, supra, note 301, p. 322.
306. Brownlie, supra, note 248, p. 119.
307. Ibid.
3. The Five Principles and Jus Cogens

Another problem to be discussed briefly here is the relationship
between the Five Principles of Peaceful Coexistence and jus
cogens. It has been suggested that
"the Five Principles of Peaceful Existence have been charac-
terized both as having received their legal basis from pre-
existing fundamental principles (e.g., sovereignty, non-
intervention, etc.), to which the United Nations Charter has
only given new expression, and as forming a body of peremp-
tory norms necessary for the international ordre public308".
As these principles are in a superior status over other principles
and rules of international law, they can be said to be part of the
peremptory norms of international law (jus cogens). In the very few
cases in the practice of States where the idea of peremptory norms
was invoked, there was no indication that the Five Principles of
Peaceful Coexistence were included m. In the practice of the PRC,
jus cogens has not been mentioned in its diplomatic announce-
ments. As it is not a party to the Vienna Convention on the Law of
Treaties of 1969, it is not bound by the provisions of the Conven-
tion in so far as they are not declaratory of customary international
law. The relationship between the Five Principles of Peaceful
Coexistence and^uy cogens is, therefore, a problem of conjecture.
The concept of jus cogens is a relatively new one in international
law, though it has been mentioned fleetingly in the years before the
Second World War310, or, as a concept of municipal law, may be
traced to Roman Law3". Much discussion had taken place in the
community of international law since the concept was introduced
308. James Chien Hsuing, Law and Policy in China's Foreign Relations: A
Study of Attitudes and Practice, New York, 1972, p. 29. See also Zhou Geng-
sheng, supra, note 244, pp. 37-41.
309. See Suy, supra, note 286, pp. 60-69, for international practice. A Chi-
nese scholar, Li Haopei, has made an extensive study of the problem of jus
cogens in international law in an article "Jus Cogens in International Law" (in
Chinese), Chinese Yearbook of International Law, 1982, pp. 57-63, and in
General Course on the Law of Treaties (in Chinese), Beijing, 1988, pp. 286-303.
310. T. O. Elias pointed out that the concept of jus cogens "is a relatively new
one in customary international law", "Problems Concerning the Validity of
Treaties", in Collected Courses, Vol. 134 (1971), p. 388. A thorough study on
the concept ofyus cogens has been made by Erik Suy, see supra, note 286 ; see also
Li's article, supra, note 309.
311. Suy, supra, note 287, p. 18.
280 Wang Tieya
in the International Law Commission of the United Nations in its

drafting of a convention on the law of treaties312. After a long
debate, the result was the insertion of an article in the Convention,
that is, Article 53 on Treaties Conflicting with a Peremptory Norm
of General International Law (Jus Cogens), which provides as
follows :
"A treaty is void, if, at the time of its conclusion, it conflicts
with a peremptory norm of general international law. For the
purposes of the present Convention, a peremptory norm of
general international law is a norm accepted and recognized
by the international community of States as a whole as a
norm from which no derogation is permitted and which can be
modified only by a subsequent norm of general international
law having the same character313."
The adoption of the above provisions shows that there is
undoubtedly an agreement on the existence of jus cogens in inter-
national law, though certain important questions concerning the
concept have been left unanswered3M.
From these provisions, it is justified to say that the Five Princi-
ples of Peaceful Coexistence as fundamental principles of interna-
tional law are peremptory norms of general international law315.
The Five Principles are general in character ; they are accepted and
recognized by all States, or, at least, by a overwhelming majority of
States ; and they are principles of international law from which no
derogation is permitted. However, these do not solve the whole
problem of the relationship between the Five Principles of Peaceful
Coexistence as the fundamental principles of international law and
jus cogens. Can it be said that the fundamental principles of inter-
national law are equivalent to the peremptory norms of general
international law? It is true to say that the fundamental principles
of international law, including the Five Principles of Peaceful
Coexistence, having an imperative character, may be regarded as
312. Lauterpacht suggested the idea of "overriding principles of international

law" in his Report on the Law of Treaties of 1953, Yearbook of the Internatio-
nal Law Commission, 1953, Vol. II, pp. 154-156, while the concept of jus cogens
was introduced by Fitzmaurice in his Report of 1958. Ibid, 1958, Vol. II, p. 27.
313. UN Doc. A/CONF.39/27 (1969).
314. See Li, "Jus Cogens in International Law", supra, note 309, p. 62.
315. Hsiung, supra, note 308, p. 29.
peremptory norms of general international law. On the other hand,

however, is it also true to say that all peremptory norms of general
international law are fundamental principles of international law
and thus acquire the same position in international law as the fun-
damental principles of international law, including the Five Princi-
ples of Peaceful Coexistence?
The concept of jus cogens is one of the most controversial sub-
jects 3I6, though its concept is generally admitted. Suy has presented
an excellent paper entitled "The Concept of Jus Cogens in Public
International Law" to the Legonissi (Greece) Conference on Inter-
national Law held on 3-8 April 1966. At the very beginning of the
paper, Suy tried to define the concept of jus cogens as follows :
"It is the body of those general rules of law whose non-
observance may affect the very essence of the legal system to
which they belong to such an extent that the subjects of law
may not, under pain of absolute nullity, depart from them in
virtue of particular agreements3I7."
This definition is apparently related to the concept in the municipal
system of law. After a detailed survey of the opinions of writers on
international law, he reached the conclusion, however, that: "In
both East and West, writers on international law are virtually
unanimous in their acceptance of the idea of an international jus
cogens" but "Writers are also unanimous in stressing the very great
difficulty, perhaps impossibility of defining the notion of jus
cogens"m. The provisions in Article 53 of the 1969 Convention
have provided a definition of jus cogens, but it is a rather formal
definition without covering all the main features of the concept.
They do not provide for the criterion for identifying the existing
peremptory norms, even by way of example.
In the discussion on the concept of jus cogens, the concept of the
fundamental principles of international law is usually involved.
Lauterpacht's well-known phrase "the overriding principles of
international law which may be regarded as constituting principles
316. Sir Ian Sinclair has aptly said that "there was a wide diversity of views
as to the sources of jus cogens, the scope and content of jus cogens and the
means for determining that scope and content", "Jus Dispositivum and Jus
Cogens in International Law", in International and Comparative Law Quarterly,
Vol. 60 (1966), p. 67.
317. Suy, supra, note 287, p. 18.
318. Ibid., pp. 48-49.
282 Wang Tieya
of international public order"319 might be intended to mean both

concepts. Brownlie is more explicit when he says that "certain fun-
damental principles have recently been set apart as overriding prin-
ciples of jus cogens which may qualify the effect of more ordinary
rules"320. In the report of the Sixth Committee to the General
Assembly on 6 November 1963, it was stated that "there exist in the
general positive international law today certain fundamental rules
of international public order contrary to which States may not
validly contract (jus cogens)"321, a statement which equates the
concept of jus cogens with that of the fundamental principles of
international law. Castren asserted also that "jus cogens was
concerned with fundamental rules which were universally recog-
nized by the international community"322. The equivalence of the two
concepts has been clearly advocated by Tunkin. To the question
what are the norms of jus cogens, he replies that "All the generally
recognized fundamental principles of international law form part of
it". It is arguable that the basis of both concepts are related to
international public order or public policy, or as some writers pre-
fer, public interest or international morality323.
319. Lauterpacht, supra, note 312, p. 155.

320. Ian Brownlie, Principles of Public International Law, 3rd ed., Oxford,
1979, p. 20.
321. See United Nations Yearbook, 1963, pp. 514-516.
322. United Nations Conference on the Law of Treaties, 1st session, Vienna,
26 March-24 May 1968, Official Records, UN Doc. A/CONF.39/11, p. 621.
323. Quoted by Suy, supra, note 287, p. 48. Tunkin said that : "To imperative
principles should be relegated essentially all fundamental generally recognized
principles of contemporary international law, although in this connection the
problem arises of the incomplete imperative nature of certain of them", supra,
note 293, p. 157.
Gnther Jaenicke pointed out that :
"There are, however, quite a number of other principles and rules of gen-
eral international law which irrespective of whether or not they qualify
as jus cogens are regarded as fundamental because they serve common
interests of the international community of States ; for example, the 'basic'
principles in the United Nations Charter, Declaration on Principles of Inter-
national Law Concerning Friendly Relations and Co-operation Among States
of 24 October 1970, qualify as components of the international public order."
("International Public Order", in Bernhardt, supra, note 296, p. 315.)
McNair stated in his Law of Treaties, Oxford, 1961, p. 215, that :
"There are, however, many rules of customary international law which
stand in a higher category and which cannot be set aside or modified by
contracting States, . . . They are rules which have been accepted, either
expressly by treaty or tacitly by custom, as being necessary to protect the
public interests of the society of States or to maintain the standards of
public morality recognized by them."
However, the distinction between the concept of jus cogens and

that of the fundamental principles of international law has been
maintained by some writers on international law. Alexidze pointed
this out in his discussion on the fundamental principles of interna-
tional law. He said that
"The fundamental principles of international law are those
in which international jus cogens should be sought. While not
all these principles can be qualified as jus cogens rules the
bulk of fundamental principles have a peremptory charac-
ter324."
In a similar sense, Virally asserts that "if norms of jus cogens
are fundamental norms of exceptional importance to the interna-
tional society, it does not mean, however, that all the fundamental
international norms form part of jus cogens"325. The opinion of
Monaco is interesting and to be noted. He states that the most
delicate problem which arises initially is to determine the relation-
ship between norms of jus cogens and constitutional norms of inter-
national order. He concludes that it is impossible to establish
whether fundamental norms take priority over those of jus cogens or
vice versa, and, in the result, he places them both at the apex
without distinguishing between them326. He does see the distinction,
but does not find the way to solve the problem of priority as both
of them have the same overriding force. Jaenicke points out that
the international public order of an overriding character consists of
rules of jus cogens and principles and rules of international law
"which irrespective of whether or not they qualify as jus cogens
are regarded as fundamental because they serve common inter-
ests of the international community of States"327. He means that
the rules of jus cogens and the fundamental principles of interna-
tional law are both components of international public order.
The enumeration of rules of jus cogens may make clear the rela-
tionships of the fundamental principles of international law and jus
324. L. Alexidze, "Legal Nature of Jus Cogens in Contemporary Internatio-
nal Law", in Collected Courses, Vol. 172, 1981-III, p. 260.
325. Michel Virally, "Rflexion sur le 'Jus Cogens'", Annuaire franais de
droit international, vol. 12, 1966, p. 10.
326. Cited in R. St. J. Macdonald, "The Charter of the United Nations and
the Development of Fundamental Principles of International Law", in Bin
Cheng and E. D. Brown (eds.), Essays in Honour of Georg Schwarzenberger on
his 80th Birthday, London, 1988, p. 198.
327. Jaenicke, supra, note 323, p. 315.
284 Wang Tieya
cogens, though a complete enumeration is hardly possible. The

International Law Commission admitted that for the present time
"there is not yet any generally recognized criterion by which to
identify a general rule of international law as having the character
of jus cogens". No enumeration of the rules of jus cogens are
provided in the 1969 Convention on the Law of Treaties or in any
other international legal document. Such enumeration might be
possible only when the whole international law is codified. The
International Law Commission did, however, give some "obvious
and best settled rules of jus cogens". They were rules concerning
the use or threat of force in violation of the United Nations Char-
ter ; international crime ; and acts which international law required
to be repressed or punished by every State329. In the meetings of the
Commission, some members suggested as the rules of jus cogens
some more rules which concerned human rights, state equality,
pacta sunt servanda, rebus sic stantibus, freedom of the seas, and
national self-determination. Some fundamental principles of inter-
national law were thus included in giving examples of the rules of
jus cogens m.
It is generally agreed that rules of jus cogens can be found in the
United Nations Charter, though as aptly pointed out by Ago, not
all the provisions of the United Nations Charter are jus cogens and,
conversely, not all rules of jus cogens are incorporated in the Char-
ter331. The most conspicuous example of a rule in international law
having the character of jus cogens is the provision of the Charter
prohibiting the use of force332. The Principles of the United Nations
as provided in Article 2 of the Charter, or, at least, some of them,
are usually marked out as of the same character333. Also men-
tioned as examples of jus cogens are the provisions relating to
non-intervention, State sovereignty, political independence, State
equality, human rights and self-determination334. Some writers give
328. Yearbook of the International Law Commission, 1963, Vol. II, p. 198.
329. Ibid, p. 52.
330. Ibid., Vol. I, pp. 67, 143, 197 and 213.
331. Roberto Ago in ibid., p. 71. See N. Rao, "Jus Cogens and the Vienna
Convention on the Law of Treaties", Indian Yearbook of International Law,
Vol. 14, No. 3-4,1974, p. 381.
332. The American Law Institute, Restatement of the Law : The Foreign
Relations Law of the United States, St. Paul, 1987, Vol. I, p. 29.
333. Macdonld, supra, note 326, p. 205.
334. Rao, supra, note 331, p. 381.
a particular position to Article 103 of the Charter, considering it, as

Macdonald does, as "an early forerunner of the jus cogens doc-
trine"335. In addition to the United Nations Charter, the Declara-
tion on the Principles of International Law of 1970 is often consi-
dered as another source of the rules of jus cogens336. The seven
principles of the Declaration which reaffirm and elaborate the
Principles of the United Nations and the Five Principles of Peace-
ful Coexistence which constitute the basic principles of interna-
tional law are considered as imperative rules of international law
(jus cogens).
Attempt has been made by writers to give some examples of
rules of jus cogens or even provide a list, brief or comprehensive.
Brownlie gives a few examples which include : the prohibition of
aggressive war, the law of genocide, the principle of racial non-
discrimination, crimes against humanity and the rules prohibiting
trade in slaves, and piracy337. Alexidze mentions five groups of uni-
versally recognized principles of contemporary international law
whose peremptory character is obvious : (a) principles which estab-
lish the main sovereign rights of States and peoples ; (b) principles
defending the peace and security of nations ; (c) principles establish-
ing major demands of humanity ; (d) principles prohibiting crimes
against humanity ; and (e) principles prohibiting the appropriation
of parts of space vitally important to all States of the world. He
admits that this is not exhaustive and "the principles enumerated in
it are only part of the whole aggregate of the norms of jus cogens
permeating all branches of contemporary international law"338.
Most fascinating work has been done by Whiteman. After treating
"the nature, definition, existence, and utilization of the concept" of
jus cogens, she submits "a Projected List of Peremptory Norms of
International Law (Jus Cogens)" consisting of 20 headings of acts
which are outlawed by world consensus under international law
(jus cogens)339. It includes even "economic warfare with the purpose
of upsetting : (a) the world's banking system ; (b) the world's cur-
335. See his discussion on Article 103 of the Charter in supra, note 269, pp. 120-
126.
336. Ibid., pp. 139-144.
337. Brownlie, supra, note 320, p. 513.
338. Alexidze, supra, note 324, p. 260.
339. Majorie M. Whiteman, "Jus Cogens in International Law, with a Pro-
jected List", in Georgian Journal of International and Comparative Law, Vol. 7,
1977, pp. 609 and 625, for the list, see ibid, pp. 625-626.
286 Wang Tieya
rencies; (c) the world's supply of energy; or (d) the world's food
supply"340. The list can readily be extended to any subject which the
writer deems it necessary for his notion of the system of interna-
tional law341.
The situation is confusing indeed342. What matters here is the
relationship between the fundamental principles of international
law which includes the Five Principles of Peaceful Coexistence and
the rules of jus cogens. The enumerations made and the list pro-
posed for the latter have attempted to include therein all or some of
the former. Suy has expressly indicated that, to some writers, the
principles "based on the principle of peaceful coexistence" are rules
of jus cogens3*3. In discussing the nature of jus cogens, the opinion
of Pella is often cited to the effect that the rules of jus cogens are
directed against "acts which shock the very foundations on which
the international community rests, acts which endanger the peace-
ful coexistence of nations"344. The fundamental principles of inter-
national law are thus assimilated to the rules of jus cogens. The
distinction of the two is blurred.
It is true, as mentioned above, that the fundamental principles of
international law, including the Five Principles of Peaceful Coexis-
tence, and the rules of jus cogens have their similarities. They both
are recognized and accepted by all States or a great majority of
States and their legally binding force is superior to other principles
and rules of international law. However, they have dissimilarities.
At least two distinctions can be made. First, while the rules of jus
cogens apply primarily to treaty relations of States, the fundamen-
tal principles of international law apply to all acts of States, not
confined to the treaties, but covering all branches of international
340. Whiteman, op. cit., p. 626.

341. According to Macdonald,
"there are perhaps three classes of peremptory norms that can be identified.
First, there are those long-standing rules that go back to the end of the last
century and the early years of this . . . Second, there are those rules that
have emerged since the Second World War as peremptory norms . . . Third,
there are those emergent peremptory norms of international law that many
States and many groupings of States accept as non-derogable but that are
not accepted as such by a significant majority of States . . . "
Supra, note 269, pp. 132-133.
342. A. Gomez Robledo, "Le jus cogens international : sa gense, sa nature,
ses fonctions", in Recueil des cours, vol. 172, 1981-11, p. 167.
343. Suy, supra, note 287, p. 49.
344. Quoted in Whiteman, supra, note 339, p. 609.
law345. Secondly, while the rules of jus cogens are left to be de-
veloped by State practice and the jurisprudence of the international
courts346, the fundamental principles of international law are em-
bodied in the Charter of the United Nations, and they are presented
as the Five Principles of Peaceful Coexistence, and are systemati-
cally provided in other important international legal instruments.
These distinctions cannot be denied.
There has been a tendency after the establishment of the notion
of jus cogens to deny the importance of the concept of the funda-
mental principles of international law by including all or some of
them in the list of jus cogens*1. The result, as mentioned above, is
a confusion to confuse one with the other. It is a problem need-
ing to be solved. The main attitude of the PRC appears to be that
it would stick to the Five Principles of Peaceful Coexistence and
accept the fundamental principles of international law as embodied
in the Charter of the United Nations and provided in other binding
international legal instruments. Presumably, it would not object to
applying rules of jus cogens which are part of international conven-
tional or customary law. The urgent requirement for international
order, it is submitted, is rather the reaffirmation and restatement of
the fundamental principles of international law.
345. See Farhad Malekian, The System of International Law, Uppsala, 1987,
p. 18.
346. Report of the International Law Commission, Vol. II, 1966, p. 25.
347. See, for instance, Alexidze, supra, note 324, pp. 230-231.
288
CHAPTER IV
SOME ASPECTS OF THE CONTEMPORARY

CHINESE PERSPECTIVE OF INTERNATIONAL LAW:
(II) THE CONCEPT OF SOVEREIGNTY
1. The Principle of Sovereignty

The PRC steadfastly and perseveringly upholds the principle of
sovereignty and, in its diplomatic announcements, professes to be a
most enthusiastic champion of that principle. Strict adherence to
the principle of the inviolability of sovereignty has become a dis-
tinctive feature of foreign policy of the PRC and is treated as the
basis of international relations and the cornerstone of the whole
system of international law**.
In the Five Principles of Peaceful Coexistence, the principle of
sovereignty ranks first. It is the main principle to which the other
four principles are related M9. It is linked to the territorial integrity
and supplemented by the principles of non-intervention and non-
aggression. Equality and mutual benefit is the concrete expression of
the sovereignty of a State, while peaceful coexistence is premised
upon respect for the sovereignty of States. The principle of sove-
reignty as the core of the fundamental principles of international
law can also been seen in the United Nations Charter and other
important international legal instruments. The Charter expressly
provided that the United Nations is based on the principle of sove-
reign equality 35.
Sovereignty is one of the most controversial concepts in interna-
tional law. In the course of more than 300 years since Jean Bodin
initiated the theory of sovereignty the concept was so much tainted
with prejudice and distortion that it has become unpopular. It has
been denounced as an "archaic, unworkable, misleading and dan-
348. Jerome Alan Cohen, "Attitudes Toward International Law", in Jerome

Alan Cohen (ed.), Contemporary Chinese Law: Research Problems and Pers-
pectives, Cambridge, 1970, p. 287.
349. Wang, supra, note 280, p. 82. See also Ramundo, supra, note 285, p. 92.
350. K. W. B. Middleton, "Sovereignty in Theory and Practice", in W. J.
Stankiewicz (ed.), In Defence of Sovereignty, New York, 1969, p. 32.
gerous" political dogma351. Laski, the prominent political theorist,

declared that : "it would be of lasting benefit to political science if
the whole concept of sovereignty were surrendered"352. Among
jurists, it has also many foes353. Some international lawyers speak
of it very severely. Jenks, a well-known international lawyer, was
one of the powerful deniers of the concept. He characterized
sovereignty as "sanctified lawlessness, a juristic monstrosity and a
moral enormity" and gave the following harsh verdict :
"Sovereignty holds no promise of peace. It affords no pros-
pect of defence. It provides no assurance of justice. It gives no
guarantee of freedom. It offers no hope of prosperity. It fur-
nishes no perception for welfare. It hardens the opposition to
orderly and peaceful social change. It disrupts the discipline
without which scientific and technological innovation becomes
the Frankenstein of our society (but a remorseless Franken-
stein perpetually making new monsters). It is a mockery, not a
fulfilment, of the deepest aspirations of humanity. The most
eloquent refutation of the concept of sovereignty in the sphere
of international relations is its futility, as tested by the pro-
fessed purposes of contemporary politics354."
To him, sovereignty is a concept entirely devoid of any merit and
becomes the root of all evil. Regretfully, however, such a vigorous
attack on the concept is rather an expression of sentiment and pas-
sion than a statement of fact and reality. The hard fact is that the
world is composed of sovereign States independent from each
other. As asserted by Alfaro, sovereignty properly understood
"implies no menace to peace, no obstacle to the development and
the dignity of the State, no infringement of juridical logic, no con-
flict with the realities of life"355. To respect the sovereignty of each
State is to preserve international peace and security while violations
351. R. P. Anand, "Sovereignty of States in International Law", in R. P.

Anand (ed.), Confrontation or Co-operation? International Law and the De-
veloping Countries, New York, 1987, p. 72.
352. Harold Laski, Grammar of Politics, London, 1941, p. 44. See also
J. Maritan, "The Concept of Sovereignty", in Stankiewicz, supra, note 350,
pp. 42-43.
353. E. Lauterpacht, supra, note 276, Vol. 2, Cambridge, 1975, p. 397.
354. C. W. Jenks, A New World of Law?, London, 1969, p. 134. See also
C. W. Jenks, Law in the World Community, New York, 1967, p. 34.
355. R. J. Alfaro, "The Rights and Duties of States", Collected Courses, Vol.
97, 1959-11, p. 115.
290 Wang Tieya
of sovereignty will give rise to conflicts of States with the result of

peace being threatened or destroyed. Sovereignty is not a myth but
a practical necessity356. As said by Anand, "it is not possible to
wish away sovereignty from the realm of international law"357.
The PRC sticks to the doctrine of sovereignty not only because
China has bitter experiences of its sovereignty being ruthlessly
encroached upon by foreign powers in the past, but that it also has
the conviction that the principle of sovereignty is the only main
foundation upon which international relations and international
law can be established and developed358. The Chinese put emphasis
on sovereignty because it is the hard-worn prize of their long strug-
gles for their lost sovereignty. They take sovereignty as a legal bar-
rier protecting against foreign domination and aggression359. The
newly established States are also most attached to the concept as
they are extremely sensible to any infringement of their newly
acquired independence and sovereignty. The same may be said of
the Latin American States 36. The concept has also the support of
the Soviet Union to protect itself against imperialistic encroach-
ment and secure the existence of its social and state forms. It insists
on the observance of the principle of sovereignty which, in its view,
does not obstruct co-operation between States but rather makes the
co-operation more fruitful and successful361. As a matter of fact,
356. J. L. Brierly stated clearly that sovereignty "does stand today for some-
thing in the relations of States which is both true and very formidable", The
Law of Nations, 6th ed., edited by Sir Humphrey Waldock, Oxford, 1963, p. 47.
357. Anand, supra, note 351, p. 89.
358. Leng Shaochuan, "Chinese Law", in A. Larson and C. W. Jenks (eds.),
Sovereignty Within the Law, New York, 1965, pp. 260-261.
359. According to Hsiung, there are three component elements in the Chinese
doctrine of sovereignty: first, violation and infringement of the PRC sove-
reignty by other countries shall not be tolerated ; second, the PRC is equally
committed to respecting the sovereign prerogatives of other States; and, third,
the PRC will never surrender her own sovereign interests or sell out those of
other States to the imperialists. Supra, note 308, p. 73.
360. See R. P. Anand, "Sovereign Equality of States in International Law",
Collected Courses, Vol. 197, 1986-11, pp. 38-41. And Abi-Saab, supra, note 5,
p. 103. For the South American States, see F. V. Garcia-Amad or, "Latin Ame-
rican Law", in Larson and Jenks, supra, note 358, p. 123.
361. See M. Chakste, "Soviet Concepts of State, International Law and
Sovereignty", AJIL, Vol. 43, 1943, pp. 30-34. It is interesting to note the opi-
nion of the Soviet scholar, I. I. Lukashuk. He said recently that: "In fact, the
assumptions and exercise of international legal obligations constitutes a realiza-
tion of sovereignty . . . As a result, its capacity to exercise its sovereignty in
international relations is enhanced". "The Principles Pacta Sunt Servanda and
the Nature of Obligation under International Law", AJIL, Vol. 83, 1989,
pp. 514.
the practice of States has aways endorsed the principle and even
big powers have very often referred to it in their conduct of foreign
relations. As justly asserted by Andrassy, sovereignty is an un-
deniable fact, the expression having a very real existence which has
not arisen out of the speculations of scholars, but developed by an
old-age State practice362.
Apparently, what has to be insisted on is the original idea of
sovereignty, while the object of attack is the doctrine of absolute
sovereignty M. Bodin formulated sovereignty as the supreme power
of the sovereign over the territory and its inhabitants, unrestrained
by any laws and rules made by any other power on earth, but
limited by the laws of God and of Nature and by certain human
laws common to all nations. The sovereign has therefore to obey
the rules of international law and to observe its obligations towards
other sovereigns364. Unfortunately, the original idea has been dis-
torted and the doctrine of absolute sovereignty has been invented
to justify the expansionist and aggressive policy of some States,
especially during the years before the First and Second World
Wars. It was then that the strong reaction to that doctrine
happened.
It is significant to see that most of the international lawyers who
speak seriously against the concept of sovereignty take as their
object of attack the doctrine of absolute sovereignty and do not
abolish the concept itself. Jessup, for instance, maintains a critical
attitude toward sovereignty of the State, as he points out that
sovereignty "in its meaning of an absolute, uncontrolled State will,
ultimately free to resort to the final arbitrament of war is the
quicksand upon which the foundations of traditional law are built".
He admits, however, that "the world is today organized on the
basis of the coexistence of States" and, therefore, "sovereignty in
the sense of exclusiveness of jurisdiction in certain domains, and
362. G. Andrassy, "La souverainet et la Socit des Nations", Recueil des

COM, vol. 61,1937-III, p. 656.
363. See Alf Ross, A Textbook of niernational Law, London, 1957, p. 54.
364. See Marek Stanislaw Korowicz, "Some Present Aspects of Sovereignty
in International Law", Collected Courses, Vol. 12, 1961-1, pp. 8-9; E. N. Van
Kleffens, "Sovereignty in International Law", Collected Courses, Vol. 82, 1953-
I, pp. 52-55. Bodin said that "even if we define sovereignty as being free from all
laws, nevertheless there is no sovereign to be found who has the absoluteness
of sovereign rights, since the divine law and the law of nature bind them all, as
also the common law of all nations", quoted in Van Kleffens, ibid., p. 55.
292 Wang Tieya
subject to overriding precepts of constitutional force, will remain a

usable and useful concept"365. In a more emphatic sense, Brierly
rejects the notion of sovereignty in the international sphere, but the
notion he rejects is one that he conceives as entirely in conflict with
the very concept of international law, that is, sovereignty as the
supreme will not subordinated to any overriding obligations. One
has to agree with him that "if sovereignty means absolute power,
and if States are sovereign in that sense, they cannot at the same
time be subject to law"366. But he admitted, as pointed out by Lau-
terpacht, that the doctrine of sovereignty was an expression of the
overriding reality of the actual power wielded by States and an
analysis which ignored that factor was bound to be incomplete367.
As stated by the dissenting judges in their dissenting opinion in the
Customs Rgime case before the Permanent Court of International
Justice, 1931, "Complete and absolute sovereignty unrestricted by
any obligation imposed by treaties is impossible and practically
unknown"368.
The PRC has never adhered to the doctrine of absolute sover-
eignty. It has always maintained a sharp vigilance against violation
or infringement of its sovereignty by foreign powers, yet it has
never taken the position that sovereignty is an illimitable power, as
alleged by some writers3es. The Five Principles of Peaceful Coexis-
tence which it consistently supports manifests clearly that the prin-
ciple of sovereignty is, in effect, restricted by four other principles.
According to the principles of non-intervention and non-aggression,
for example, sovereignty is conditioned on no intervention in in-
ternal affairs of other States and on no aggression against other
States. More significantly, in the Five Principles of Peaceful
Coexistence, the principle of sovereignty is presented as "mutual
365. Philip C. Jessup, A Modern Law of Nations: An Introduction, New

York, 1948, pp. 12 and 17, and Marek Stanislaw Korowicz, Introduction to
International Law, New York, 1959, p. 14.
366. J. L. Brierly, supra, note 356, p. 16.
367. E. Lauterpacht, supra, note 276, p. 440. Brierly said that :
"The doctrine was developed for the most part by political theorists who
were not interested in, and paid little regard to, the relations of States with
one another, and in its later forms it not only involved a denial of the
possibility of States being subject to any kind of law, but became an impos-
sible theory for a world which contains more States than one."
Supra, note 356, pp. 46-47.
368. Permanent Court of InternationalJustice, Series A/B, No. 41, p. 77.
369. For instance, Hsiung, supra, note 308.
respect for sovereignty" "respect for sovereignty" being qualified

by the word "mutual". "Mutual respect for sovereignty" means that
the sovereignty of one State is restricted by that of others and the
sovereignty of all States should be equally respected. The idea that
sovereignty is absolute in nature and gives the States the freedom
to do whatever they like, including the right to resort to war, is
thus definitely refuted370. Moreover, the emphasis given by the
PRC to the rule of pacta sunt servanda and its observation of
treaties it concludes show its idea of sovereignty. For the conclu-
sion of a treaty is an act of sovereignty, while the provisions of
a treaty imply always limitation of sovereignty371.
A few instances drawn from the diplomatic practice of the PRC
may further illustrate its attitude toward sovereignty in different
contexts.
1. In April 1949, when British warships intruded into the Yangzi
River, Chairman Mao Zedong bitterly informed the British Prime
Minister, Atlee, that
"the Yangzi River is an inland water of China. What right
have you British to send in your warships ? You have no such
right. The Chinese people will defend their territory and
sovereignty and absolutely will not permit encroachment by
foreign governments372."
2. At the Geneva Conference on the Question of Laos of 1961-
1962, there was a heated debate on the mandate of the Inter-
national Commission on Laos' neutrality. The Chinese delegation
repeatedly declared that Laos should be a sovereign and indepen-
dent State and all the activities must respect the sovereignty and
independence of Laos. When the British delegate suggested that the
Conference should give the Commission full power and the
sovereignty needed not be taken into account, "because Laos' con-
sent to sign is an exercise of sovereignty", Chinese Foreign Mini-
ster Chen Yi made a comment in his speech on 12 June 1961. He
said that :
370. Chen, supra, note 128, pp. 24-25.

371. "Practically, every treaty entered into between independent States res-
tricts to some extent the exercise of the power incidental to sovereignty", in the
dissenting opinions of the seven judges in the Customs Rgime case (1931).
Permanent Court of International Justice, Series AIB, No. 41, p. 77.
372. Selected Works of Mao Tsetung, Vol. 4, Beijing, 1961, p. 401.
294 Wang Tieya
"I will not proceed to an abstract debate on the problem of

sovereignty. I would like, however, to mention an indisputable
fact. In the past, all international treaties imposed by all Wes-
tern powers on small and weak countries have always their
signatures. In our opinion, however, this does not change
the unequal nature of these treaties which infringed the
sovereignty of small and weak countries373."
During the Conference, the Royal Government of Laos issued a
Declaration of Neutrality. The Chinese Delegation made a state-
ment in which it expressed its welcome to the Declaration and
asserted that the enacting and issuing of the Declaration "is the
sovereign act of Laos and is entirely Laos' own affair with which
no State has any right to interfere"374.
At the same Conference, the United States delegation submitted
a proposal to limit the size of Laos' army and the number and
categories of its arms by the stipulations in the agreement to be
reached. Chen Yi pointed out that "the necessities of national
defence of a State can only be determined by the government of
that State this is the minimum criterion of the State
sovereignty"375.
3. On 9 February 1963, the spokesman of the Ministry of
Foreign Affairs of the PRC flatly denied the fabricated news which
appeared in Indian newspapers that the PRC had a plan of estab-
lishing a naval base in Ceylon (Sri Lanka). The spokesman said
that:
"China consistently opposes the establishment of military
bases by any country in other countries and consistently opposes
hampering the sovereignty of other countries by any country
through economic assistance376."
4. In relation to the persecution suffered by the Chinese na-
tionals in India, the spokesman of the Commission on Overseas
Chinese Affairs issued on 20 January 1963 a written statement
which contained the following passage :
"Indian Government has not been able to advance any fur-
373. Collection of Documents, 1961, Vol. 8, p. 63.

374. Ibid., 1962, Vol. 9, p. 271.
375. Ibid., 1961, Vol. 8, p. 65.
376. Ibid., 1963, Vol. 10, p. 33.
ther arguments to justify itself. It calls in the so-called 'sover-

eignty' to deny its responsibility of persecuting Chinese resi-
dents. It is but a futile effort. For, according to international
law, no State may, under the pretext of its municipal law,
discriminate solely against the foreign residents of a certain
country. All States have the duty to respect the fundamental
rights of foreign nationals and to safeguard the safety of their
lives and property. Indian Government attempts to take the
so-called 'sovereignty' as the justification of its crime. Any-
body can see that this kind of justification has no foundation
at all377."
Later, on 23 February 1963, a note was sent by the Chinese Minis-
try of Foreign Affairs to the Indian Embassy in Beijing. In the
note, there was a similar passage which stated :
"Your note has also considered these unreasonable mea-
sures and ruthless actions of India as 'in accordance with
Indian laws' and as matters within 'the scope of sovereignty'.
This is entirely untenable. According to generally recognized
rules of international law, every State has the duty to give full
protection to peaceful and law abiding foreign nationals and
foreign legal persons, and may not deny their human rights
and fundamental freedoms by way of municipal law, and,
more particularly, may not injure their lives and property and
safety. The above-mentioned acts of persecution committed
by Indian authorities are obviously grave breaches of the rules
of international law378. "
These instances made fairly clear the basic attitude of the PRC
toward sovereignty. It will not tolerate any violation or infringe-
ment of its sovereignty and, at the same time, it is committed to
respecting the sovereignty of other States. In a word, sovereignty
should be mutually respected and should thus be mutually
restricted.
The idea of absolute sovereignty has not been entertained by the
PRC and it is deemed incompatible with the principles of peaceful
coexistence. One has to agree with the saying of Kozhevnikov that
377. Ibid., pp. 29-30.

378. Ibid., p. 38.
296 Wang Tieya
"Proclaiming unlimited sovereignty of one State and thereby rejec-

ting the sovereignty of all other States is in effect a rejection of
sovereignty as a principle of international law"379. Nor can it be
admitted, however, that the rejection of the idea of absolute sove-
reignty should lead to the denial of the whole concept of sove-
reignty. The attempt to annihilate the sovereignty of several States
by the establishment of a super-State with a "World Government"
and to replace international law by a "World Law" will definitely be
opposed by the PRC, because such an attempt would not introduce
order in the world, but it would secure the predominance of one
big power or a group of powers and violate the rights and interests
of small States380. It is in fact impossible in this world of sovereign
States. The United Nations was established on the basis of sovereign
equality of all members and was not a super-State sacrificing the
sovereignty of States. The attitude of the PRC in the United Nations
debates revealed that it had no enthusiasm for strengthening in
any way that international organization in the direction of world
government. The efforts of the United Nations should be
"to reaffirm the unalterable principles of the United Nations
Charter and further strengthen the functions of the United
Nations Organization so that it may play a greater role in the
noble cause of maintaining world peace and increasing inter-
national co-operation381."
2. Territorial Sovereignty, Independence and Equality

Zhou Gengsheng, a leading Chinese international lawyer, has
defined in his authoritative work on international law the
sovereignty as "the supreme power of the State dealing with its
own internal and external affairs independently and autonomously".
"Upon analysis," he said, "State sovereignty has two respects, that
is, internally, supreme, and, externally, independent382."
379. F. I. Kozhenikov, International Law, Moscow, 1981, a Chinese transla-

tion, Beijing, 1985, p. 95; quoted also in Ramundo, supra, note 285, p. 92.
380. See Korowicz, supra, note 363, p. 101, and McWhinney, supra,
note 255, p. 29.
381. The speech of the Foreign Minister of the PRC, Wu Xueqian, at the
40th session of the General Assembly of the United Nations on 30 September
1985. The Bulletin of the State Council of the PRC (in Chinese), No. 29, 1985,
p. 997.
382. Zhou, supra, note 280, p. 75.
In its internal aspect, the sovereignty is the supreme power of the

State over its territory and persons and things within its territorial
limits. It was declared in the North Atlantic Coast Fisheries case
that "one of the essential elements of sovereignty is that it is to be
exercised within territorial limits, and that, failing proof to the
contrary, the territory is coterminous with the sovereignty"383. In
this aspect, sovereignty is called territorial sovereignty. It is, as
explained by Clive Parry, "an aspect of sovereignty connoting the
internal, rather than the external, manifestation of the principle of
sovereignty"384. The importance of the territorial sovereignty is
indicated by the International Court of Justice which declared in
the Corfu Channel case that : "Between independent States respect
for territorial sovereignty is an essential foundation of international
relations385." The principle of sovereignty in the Five Principles of
Peaceful Coexistence is therefore sometimes specified by adding
"territorial sovereignty" or "territorial integrity" to "sovereignty".
The past experience of China of foreign invasion and occupation
of Chinese territory and various restrictions imposed on China's
territorial sovereignty by foreign powers has convinced the PRC
that extreme importance should be attached to the unification of
the whole country and the preservation of its territorial sovereignty
against foreign encroachment. It has been solemnly declared by
Premier Zhou En-lai that, "China has no intention to commit
aggression against the territory of other States and will never
tolerate the encroachment of the territory of China by other
States"386. It is understandable that the PRC should have been very
sensitive to its territorial problems and should have the jealousy
with which it guards its territorial sovereignty and integrity.
The efforts of the PRC to defend its territorial sovereignty are
manifested in several ways. Firstly, it has persistently insisted that
Taiwan is an inalienable part of China and the formula of "two
Chinas" has been consistently refuted387. The problems of Hong
383. United Nations Reports of International Arbitrai Awards, Vol. 11,

p. 838.
384. Clive Parry and John P. Grant, Encyclopaedic Dictionary of Internatio-
nal Law, New York, 1986, p. 370.
385. International Court of Justice Reports 1952, p. 35.
386. Collection of Documents, Vol. 3, 1954-1955, p. 141.
387. See, for instance, the statement made by Wu Xieqian at the Security
Council of the United Nations on 28 November 1950, Collection of Documents,
Vol. 1,1949-1950, pp. 201-202.
298 Wang Tieya
Kong and Macao have been settled through agreements with the
United Kingdom and Portugal by which the sovereignty of these
territories is to be restored to China in 1997 and 2003 respec-
tively388. Secondly, the PRC has time and again vigorously raised
protests against foreign intrusions into the waters and airspace
within its territorial limits. On 27 May 1960, the Editorial of the
Remin Jibao (the People's Daily) gave the one-hundreth warning
to the United States Government against the intrusion of United
States warships and military aircraft into Chinese territorial waters
and airspace389. The number of warnings increased to 200 in
1962 39, and further increased to 418 at the end of 19663". These
intrusions were condemned as crimes of violation of Chinese terri-
tory and sovereignty. Thirdly, the PRC considers that problems of
boundaries with its neigbouring countries are matters of major
importance which involve the sovereignty and territory of a coun-
try392. Its consistent position is that these problems which are left
over from the past should be settled through friendly negotiations
on the basis of the Five Principles of Peaceful Coexistence. As a
matter of fact, most of its boundary problems have been so settled
in the treaties and agreements with Burma (Agreement of 28
January 1960 and Treaty of 1 October 1960); with Nepal (Agree-
ment of 21 March 1960 and Treaty of 5 October 1961); with the
Mongolian People's Republic (Treaty of 26 December 1962) ; with
Pakistan (Agreement of 2 March 1963); and with Afghanistan
(Treaty of 22 November 1963)393. It expects that the remaining ter-
ritorial problems should be settled in the same way. In a recent
statement published on 20 November 1985, its position in regard to
the Sino-Indian boundary problem was reiterated as follows :
388. The Sino-British Joint Declaration on the Question of Hong Kong, 19

December 1984 and the Sino-Portuguese Joint Declaration on the Question of
Macao, 13 April 1987. For the Chinese text of the Sino-British Joint Declara-
tion of 1984, see Chinese Yearbook of International Law, 1985, pp. 612-625 ; for
the English text, see Sino-British Joint Declaration on the Question of Hong
Kong, Beijing, 1984. For the Chinese text of the Sino-British Joint Declaration
of 1987, see Chinese Yearbook of International Law, 1988, pp. 581-590, and the
English text, see Beijing Weekly, 1987, No. 14.
389. Collection of Documents, 1960, Vol. 7, pp. 384-388.
390. Ibid, 1962, Vol. 9, pp. 436-440.
391. See Hsiung, supra, note 308, p. 195.
392. Ibid., p. 195.
393. Treaty Series, Vol. 9, 1960, pp. 65-68 and 68-89; Vol. 9, 1960, pp. 63-65
and Vol. 10, 1961, pp. 45-51 ; Vol. 11, 1962, pp. 19-36; Vol. 12, 1963, pp. 64-67;
ibid, 1963, pp. 122-124
"We maintain that the two sides should work for a just,
reasonable and comprehensive settlement of the boundary
question through friendly discussion in a spirit of mutual
understanding and accommodation on the basis of the Five
Principles of Peaceful Coexistence394."
In its external aspect, sovereignty signifies independence. As
stated by Judge Huber in the Island of Palmas case
"sovereignty in the relations between States signifies indepen-
dence. Independence in regard to a portion of the globe is the
right to exercise therein, to the exclusion of any other State,
the functions of State395".
Independence means that the State has liberty of action in its inter-
course with other States and is not subject to any external direc-
tion, interference or control by any other State. It is an important
aspect of sovereignty and is described by Judge Anzilotti as exter-
nal sovereignty3%.
Some international lawyers hold the position that sovereignty
should be displaced by independence. Westlake regarded sovereignty
as identical with independence397. McNair indicated that "Inde-
pendence is a preferable term because it is more descriptive,
more factual and less inclined to raise the blood pressure of the
person who uses it"398. Rousseau's view is quite well known. He
defended the view that, whilst sovereignty is to be rejected as a
legal criterium of the State, independence is the criterium which
implies exclusiveness, autonomy and full competence399. The
concept of sovereignty cannot be discarded and, as indicated by
Larson, in the final analysis, Rousseau's theory "only proves how
394. People's Daily (in Chinese), 21 November 1985.

395. United Nations Reports of International Arbitral Awards, Vol. 2, p. 838.
396. Judge Anzilotti defined independence as "the normal condition of States
according to international law, it may also be described as sovereignty (suprema
postitas) or external sovereignty, by which is meant that the State has over it no
other authority than that of international law". Permanent Court of Internatio-
nal Justice, Series A/B, No. 41, p. 57.
397. See E. Lauterpacht, supra, note 276, Vol. 2, p. 298. T. E. Holland refer-
red also to independence or "external sovereignty" in its foreign relations as
opposed to its external sovereignty exercisable over its subjects, Lectures on
International Law, London, 1933, pp. 31-32.
398. Arnold D. McNair, supra, note 323, p. 757.
399. Charles Rousseau, "L'indpendance de l'Etat dans l'ordre international",
Recueil des cours, vol. 73, 1948-11, p. 190.
300 Wang Tieya
much the dominant concept of sovereignty is tied up with the

present structure of international law, and with the realities of the
interstate relations'"*0.
Some scholars even go further to displace sovereignty not by
independence but by interdependence. Jenks described interdepen-
dence as "the basic concept of contemporary international law" and
argues that
"interdependence for peace, justice and freedom, interdepen-
dence for prosperity and technological progress, interdepen-
dence in coexistence and for defence, have superseded the
sovereignty of States as the creature of the law401".
It is true that under the present circumstances of the world and
particularly due to the rapid development of science and techno-
logy, co-operation among States is a necessary condition of world
peace and development. However, interdependence is not based on
dependence and interdependence without sovereignty and indepen-
dence would lead to disorder and conflict.
Zhou Gengsheng may be said to have reflected the attitude of the
PRC in his explanation of the concepts of sovereignty and inde-
pendence in the following passage. After distinguishing the two
aspects of sovereignty, he said as follows :
"these two aspects are closely related and inseparable, because
if a State is not independent externally, it would have to
subdue to external intervention and lose its freedom of inde-
pendently managing its internal and external affairs, and is
thus not a sovereign State. Therefore, in the [Chinese] docu-
ments of foreign relations, independence and sovereignty are
mentioned together, for example, respect for sovereignty and
independence; and, sometimes, the terms independence and
sovereignty are used synonymously, for example, by saying an
independent State, a sovereign State is meant. This is
understandable402."
Sovereignty and independence may be considered as identical
400. Arthur Larson, "Decisions of Tribunals", in Larson and Jenks, supra,

note 358, p. 429.
401. Quoted in Marek Stanislaw Korowicz, "Writings of Twentieth-Century
Publicists", in Larson and Jenks, supra, note 358, pp. 426-427.
402. Zhou, supra, note 280, p. 75.
concepts. But they have distinct meanings: sovereignty is a positive

concept with its comprehensiveness, while independence is rather
negative, emphasizing the State's freedom from foreign control in
its external relations403. Independence is therefore sometimes added
to sovereignty as the first principle in the Five Principles of Peace-
ful Coexistence. Recently, on 28 October 1985, Chinese Premier
Zhao Ziyang made an explicit statement relating to the situation in
Central America that "The Chinese Government consistently ad-
vocates that the sovereignty, independence and territorial integrity
of Central American countries should be respected"404.
Also closely related to sovereignty is equality, which is another
external aspect of sovereignty. Equality is inseparable from sover-
eignty405. As States in the present world are sovereign and refuse
to acknowledge any superior authority above them, the necessary
consequence is that they are all equal. Sovereignty implies equality
and the principle of equality is the corollary of that of sovereignty406.
The Charter of the United Nations proclaims in its Preamble its
faith "in the equal rights . . . of nations large and small" and states
in Article 2, paragraph 1, that: "The Organization is based on the
principle of sovereign equality" and again in Article 78 that the
relationship among territories which have become members of the
United Nations "shall be based on respect for the principle of
sovereign equality". Though the term "sovereign equality" may seem
to be novel, the provisions of the Charter clearly indicate the close
connection between sovereignty and equality407. The Rapporteur of
Committee 1/1 of the San Francisco Conference pointed out in
his report that the term "sovereign equality" included the following
four elements :
1. The States are juridically equal.
2. Each State enjoys the rights inherent in full sovereignty.
3. The personality of the State is respected, as well as its territorial
integrity and political independence.
403. See Korowicz, supra, note 363, p. 12; Fawcett, "General Course on
Public International Law", Collected Courses, Vol. 132, 1971-1, p. 381.
404. People's Daily (in Chinese), 30 October 1985.
405. See Schwarzenberger, supra, note 282, p. 218.
406. See I. Detter, "The Problem of Unequal Treaties", International and
Comparative Law Quarterly, Vol. 15, 1966, p. 1070.
407. See Bengt Broms, The Doctrine of Equality of States as Applied in
International Organisations, Vammala, 1959, p. 166.
302 Wang Tieya
4. The State should, under international order, comply faithfully

with its international duties and obligations408.
Thus, both principles of sovereignty and equality are hereby in-
cluded. They are aptly described by Anand as "two sides of the same
coin"409.
The principle of'equality of States has long been accepted as a
fundamental principle of international law. It had the strong sup-
port of Vattel who said that : "Strength or weakness counts for
nothing. A dwarf is as much a man as a giant is : a small republic is
no less a sovereign State than the most powerful kingdom410."
More powerful was the statement of Chief Justice Marshall who
declared in the Antelope case (1825) that :
"No principle of general law is more universally acknow-
ledged than the perfect equality of nations. Russia and
Geneva have equal rights. It results from this equality that no
one can rightly impose a rule on another4"."
It was later also stated in the Norwegian Shipowners' Claims case
by the Permanent Court of Arbitration in 1922 that : "International
law and justice are based upon the principle of equality between
States"412.
The principle of equality does not mean that States are all equal
in fact. The fact that States are different in size and population,
large or small, and in power, strong or weak, politically and eco-
nomically, cannot be disregarded. However, this factual inequality
should not be a reason upon which to deny the legal equality of
States as a basis of interstate relations and a fundamental principle
of international law413. Legal equality means equality before the
408. Documents of the United Nations Conference, San Francisco, 1945, Vol.
VI, document 1/1/34/1, p. 38.
409. Anand, supra, note 360, p. 22, where he said that : "Sovereign equality
of States refers to two fundamental principles or norms of international law,
namely, sovereignty and equality, which are really two sides of the same coin."
410. The Law of Nations, translated by Charles B. Fenwick, Washington,
D.C., 1916, Vol. Ill, p. 7.
411. Quoted in Arnold D. McNair, "Equality in International Law", in
Michigan Law Review, Vol. 26, 1928-1929, p. 136. According to D. W. Dickin-
son, the principle of equality of States "has never been expressly doubted or
denied . . . in any formal judicial utterance in a national court", The Equality of
States in International Law, Cambridge, 1920, p. 161.
412. United Nations Reports of International Arbitral Awards, Vol. I, p. 338.
413. See Dickinson, ibid., p. 335.
law or equal protection of the law and equality of rights or equal

capacity for right414 an equality which is known to all legal sys-
tems of civilized society and which is absolutely essential to a stable
and peaceful society, composed of numerous sovereign and inde-
pendent States. Otherwise, the smaller and weaker States would
lose a safeguard against encroachments of their rights by larger and
stronger powers and the world would become an empire dominated
by force or would fall into a state of international anarchy415.
It is in the same sense that the principle of equality has been
repeatedly asserted in the diplomatic announcements of the PRC.
At the Bandung Conference of 1955, Premier Zhou En-lai declared
that "States whether big or small, strong or weak, should all enjoy
equal rights in international relations. Their sovereignty and terri-
torial integrity should be respected"416. More emphatically, he
explained the position of the PRC in his speech at the reception
given on the occasion celebrating the fourteenth anniversary of the
PRC on 30 September 1963 ; he said :
"We resolutely advocate that, in international affairs,
States, big or small, are all equal, and that their matters
should be determined by their own people. We resolutely
oppose the oppression of small States by big powers, oppose
the manipulation of international affairs by a few big powers,
and oppose any form of hegemonism417."
This attitude has been expressed on many occasions.
The principle of equality has been given prominent place in the
Five Principles of Peaceful Coexistence. More significant is that
equality is put together with mutual benefit to constitute the prin-
ciple of "equality and mutual benefit". By linking with mutual
interest, the principle of equality requires not only formal equality,
which, though, is important, but also substantive. It includes not
only political equality, but also economic equality418. Immediately
414. Ibid, pp. 4 and 334-335; see also R. P. Anand, "Sovereign Equality of
States in International Law", in International Studies, Vol. 8, 1966-1967, p. 387.
415. Dickinson, supra, note 411, p. 335. Jessup admitted that: "The doctrine
of equality of States has been championed by small States and their spokesmen.
It is they who see in it a safeguard against encroachment of the great powers."
Supra, note 365, pp. 27-28.
417. Ibid, Vol. 10, 1963, p. 417.
418. Chen, supra, note 128, pp. 25-26. See Focsaneanu, supra, note 247,
pp. 174-177.
304 Wang Tieya
after the enunciation of the Five Principles of Peaceful Coexistence

in the Sino-Indian agreement of 29 April 1954, China and India
concluded a trade agreement on 14 October of the same year, of
which the Preamble stated explicitly that, in order to fulfil the
desire of developing the trade between the two countries, agree-
ment was reached on the basis of equality and mutual benefit419. At
the Bandung Conference of 1955, Zhou En-lai in the above-
mentioned statement made the following explanation of the princi-
ple of equality and mutual benefit :
"Among us Asian and African countries, co-operation
should be based on equality and mutual benefit, and no spe-
cial conditions should be attached. Trade and economic co-
operation among us should aim at the promotion of economic
independence of each country, and should not make one side
a mere producer of raw materials or a market for consumers'
goods. In cultural exchanges among us, we should respect the
national cultural development of each country, so that we can
learn from each other420."
The extension of the principle of equality to the principle of equa-
lity and mutual benefit may be said to be an important contribu-
tion to the establishment of a new international economic order.
3. Sovereignty and Exercise of Sovereignty

There has been a controversy over the problem whether sover-
eignty of a State is divisible. The controversy has had a long his-
tory, but it subsided after the First World War, as few scholars of
international law would insist on the divisibility of sovereignty. The
discussion has assumed a different aspect and centred on the
problem whether sovereignty is limited. Defined as "the supreme
power of the State", sovereignty, it is generally admitted is not divi-
sible but limitable. Sovereignty is limited in general by the univer-
sally recognized principles and rules of international law and in
particular by treaties which States conclude.
The same applies to territorial sovereignty which, as sovereignty
related to territory, is also indivisible. Oppenheim has created some
419. Treaty Series, Vol. 3, 1954, p. 28.

confusion in this respect. He admitted that territorial sovereignty,

when considered as "the supreme authority which a State exercises
over its territory", "would seem to suggest that on one and the
same territory there can exist one full sovereign State only and that
two or more full sovereign States on one and the same territory are
an impossibility'"121. He gave, however, some exceptions to show
that "sovereignty may in practice be divisible"422. In reality, the
exceptions given by Oppenheim do not prove that territorial sover-
eignty of a State is divisible. They are cases where limitations of
sovereignty of a State are involved.
It is important to point out, as does Korowicz, that limitations
on sovereignty are not limitations on the essence of sovereignty but
the limitation of the exercise of sovereignty423. In the case where a
State is subordinate to another State or States or a portion of terri-
tory of a State is ceded to another State, the sovereignty of that
State is surrendered, while in the case that the exercise of the sover-
eignty of a State is transferred to another, the sovereignty of that
State is retained424. The distinction has to be made between sover-
eignty and the exercise of sovereignty or the exercise of rights
stemming from sovereignty425. One further point to be noted is that
limitations on sovereignty may be external or internal. In the case
of external limitations of sovereignty, the exercise of sovereign
rights, that is, rights stemming from sovereignty, is transferred to
another State under the treaties concluded by both parties concer-
ned. In the case of internal limitations of sovereignty, the exercise
of sovereign rights is given or delegated or entrusted to certain local
units under the constitution or law of that State. In either case the
sovereignty of the State remains essentially intact. W. W. Wil-
loughby had attempted to explain in the following passage :
"Theoretically, the State may go to any extent in the dele-
gation of the exercise of its powers to other public bodies, or
421. Oppenheim, supra, note 3, p. 351.

422. Ibid., pp. 351-356.
423. Korowicz, supra, note 401, p. 415.
424. Ibid., note 363, p. 86, and Middleton, supra, note 350, p. 153. See
Schwarzenberger, "Fundamental Principles of International Law", supra,
note 282, p. 217.
425. Hersch Lauterpacht pointed out that: "International lawyers should
experience no difficulty in distinguishing between legal sovereignty and the
actual exercise of rights of jurisdiction", Private Law Sources and Analogies in
International Law, London, 1958, p. 189.
306 Wang Tieya
even to other States ; so that, in fact, it may retain under its

own direction only the most meagre complement of activities,
and yet not impair its sovereignty. The State's essential unity
is not thus destroyed, for in all such cases the other public
bodies or States, to which have been delegated the exercise of
these powers, act but as the agents of the State in question
and the original State still possesses the legal power, at least,
of again drawing to itself the actual exercise of the powers
thus granted426."
Leased territories in China have been considered by Oppenheim
as one of the exceptions to the rule of the exclusiveness of a single
sovereignty over the same territory, that is, the rule of the indivisi-
bility of territorial sovereignty427. On the contrary, it is rather the
case which makes clear the point that a distinction should be made
between sovereignty and exercise of sovereignty. As indicated by
Crawford, sovereignty is not "to be confused with the exercise of
'sovereignty'", and "A state may continue to be sovereign even
though important government functions are carried out, by treaty
or otherwise, by another State"428.
As mentioned above in Chapter II, during the year 1898, China
was compelled to sign five treaties with four European powers by
which five territories were leased to them and, later in 1905, one of
them was transferred to Japan. The conclusion of these lease treaties
aroused widespread attention among international lawyers and
special studies have been published since then429. The discussion
was centred on the problem of sovereignty : what was the status of
leased territories in international law? Or, more specifically, where
did the sovereignty of leased territories he during the term of the
lease?
Various theories which had been advanced for explanation of the
new phenomenon in international law may be divided into two
426. W. W. Willoughby, An Examination of the Nature of the State, New

York, 1896, p. 196.
427. Oppenheim, supra, note 3.
428. John Crawford, The Creation of States in International Law, Oxford,
1979, p. 27.
429. The notable ones are : Leon Yang, Les Territoires Bail en Chine, Paris,
1929; C. Walter Young, The International States of Kwantung Leased Terri-
tory, Baltimore, 1931 ; Ralph A. Norem, Kiaochow Leased Territory, Berkeley,
1936; and Peter Welsey-Smith, Unequal Treaty, 1898-1997 China, Great Bri-
tain and Hong Kong's New Territories, Oxford, 1980.
main opposite groups 43. One theory which had gained popularity
for a time was to regard leased territories as "disguised cession",
meaning that territories were ceded under disguised form by using
the term "lease" to displace "cession". It disregarded the meaning of
the term "lease" and found no binding force in treaties concluded
between the lessor State and lessee States. The term was a mockery
and the treaties were mere veils. What counted was the intention of
and exclusive interest of one of the parties to the treaties. Accor-
ding to this theory, sovereignty over leased territories passed effec-
tively to the lessee State, while the sovereignty of the lessor was
fictitious, nothing more than a nudum jus*21. This theory was rejec-
ted by others. The latter considered that the term "lease", which
was transplanted from municipal law separating possession from
ownership, was not without legal meaning in international law and
the status of leased territories should be based on the treaties be-
tween the lessee State and the lessor State. According to this theory,
the lessor State had effectively reserved its sovereignty and did not
transfer it to the lessee State as in the case of cession. What the
lessee State acquired were rights provided for in the treaties
430. It is not necessary to deal with these in detail, see Norem, supra, note
429, pp. 56-58.
431. Ibid., p. 56. Most publicists of the nineteenth and the early twentieth
centuries took this theory. Louis Gerard, for instance, considered leased territo-
ries as an annexation pure and simple ; he said that :
"There exist, without doubt, two sovereignties in the territories which
have been annexed in this manner. One of these, that which appertains to
the sovereignty of the ceding State, has only a fictitious, Platonic character.
In reality, it is nothing more than a nudum ius, to use the Bluntschli's
expression . . . The second of these sovereignties, that which is in fact exer-
cised in the territory, offers, on the contrary, all the characteristics of true
sovereignty. Exercised by trie State which benefits from the disguised ces-
sion, it has controlled the interior administration of the territory in ques-
tion as well as its foreign relations." (Des cessions dguises de territoires en
droit international public, Paris, 1904. Quoted in Norem, supra, note 429,
p. 61.)
T. J. Lawrence also considered that the lease amounted "in fact to a cession of
the leased territory for a limited time". War and Neutrality in the Far-East,
London, 1904, p. 273. Sakutaro Tachi, a Japanese publicist, developed a theory
that the lessor State retains the territorial right, while the lessee State exercises,
for the period of the lease, the jurisdictional and administrative powers, emana-
tions from its own sovereignty, in virtue of the lease convention. "Legal Aspects
of Leased Territories", Contemporary Japan, Vol. I, 1932, pp. 73-74. This
theory which used the terms "territorial right" and "jurisdictional and adminis-
trative powers, emanations from its own sovereignty" in a very confusing way,
and the identification of sovereignty with jurisdictional powers is untenable both
in theory and practice.
308 Wang Tieya
concerned, which were sometimes described as "jurisdictional

rights", or "jurisdiction or control", or "rights of administration"432.
It is obvious that the first is neither sound in law nor in accor-
dance with the practice433. It was based on pure political considera-
tions, taking account only of political interests of one of the parties
of the lease treaties434. It entirely disregarded the fact that the word
"cede" did not appear in the lease treaties and its place was taken
by the word "lease"435. Though no express reservation of sover-
eignty was made for the lessor State, yet no transfer of sovereignty
to the lessee State was provided either. The term of the lease was 99
years or 25 years, at the end of which the leased territories were to
revert to the lessor State. In the Sino-British Convention for the
Extension of Hong Kong of 1898, it was provided that the limits of
the British territory in Hong Kong "shall be enlarged under lease"
and the term of the lease was set at 99 years. Then followed the
provision that :
"within the city of Kowloon the Chinese now stationed there
shall continue to exercise jurisdiction except so far as may be
inconsistent with the military requirements for the defence of
Hong Kong. Within the remainder of the newly leased terri-
tory, Great Britain shall have sole jurisdiction".
Other provisions dealt with the use of Chinese men-of-war, mer-
chant and passenger vessels at the existing landing place near Kow-
loon, the right of China to construct a railway to the boundary of
the Kowloon territory under British control, the right to use the
water of Mirs Bay and Deep Bay, etc.436 Most of the provisions
were repudiated by the unilateral arbitrary action on the part of
Great Britain in spite of frequent Chinese protests437. Yet, all the
provisions showed that the leased territory was not ceded to Great
Britain but was "under British control". It remained a Chinese ter-
ritory over which China retained its sovereignty.
432. Lauterpacht, supra, note 425, pp. 181, 190 ; Norem, supra, note 431, pp.
80-81 ; and most writers who made a special study on leased territories in China
had rejected the theory of "disguised cession" and considered them as an "inter-
national lease", or an international political lease (Young), or a "public interna-
tional lease" (Norem).
433. Lauterpacht, supra, note 425, p. 185.
434. See ibid., p. 187.
435. See Norem, supra, note 431, pp. 43 and 75.
436. The Maritime Customs, supra, note 80, Vol. I, pp. 539-540.
437. Welsey-Smith, supra, note 431, p. 184.
Schack, a German publicist, had given a concise and sound

explanation, it is submitted, to the status of the Kiaochow leased
territory after Germany forced China to conclude the Convention
of 1898. He said that:
"China's reservation of sovereignty was legally effective.
The transfer was neither a permanent cession nor a cession for
a term of years. Neither was the territory leased. Sovereignty
was not transferred. Germany exercised rights of sovereignty
over the area, but the sovereignty exercised was Chinese, not
German. Germany exercised rights of sovereignty as a delega-
tion of power438."
In similar sense, the passage relating to leased territories in the
statement made by the Chinese Delegation at the Washington Con-
ference on 3 December 1926, was as follows :
"While the measure and extent of control by the lessee
powers over the leased territories varied in different cases, the
leases themselves were all limited to a fixed period of years.
Expressly or impliedly they were not transferable to a third
power without the consent of China. Though the exercise of
administrative rights over the territories leased was relin-
quished by China to the lessee power during the period of the
lease, the sovereignty of China over them had been reserved in
all cases. The leases were all creatures of compact, different
from cession both in fact and in law*39."
Thus, leased territories furnish a distinct case in which sovereignty
is distinguished from the exercise of sovereignty or the exercise of
the rights of sovereignty. All leased territories, with the exception
of the so-called Kowloon leased territory, had been restored to China
before the expiry of the lease term. The so-called Kowloon terri-
tory, now known as "the New Territories", is a part of Hong Kong
and the whole of Hong Kong will be restored to the PRC, with effect
438. Quoted in Norem, supra, note 431, p. 69. Martens had also pointed out
that, by lease, one State refrained from exercising rights of sovereignty over a
portion of its territory and delegated the exercise of them to a second power,
and a lease was therefore in no sense a cession. Although what remained of the
lesson was in the nature of a nudum ius. Quoted in ibid., p. 69.
439. In Willoughby, supra, note 146, Vol. I, p. 484.
310 Wang Tieya
from l July 1997, according to the Sino-British Declaration on the

question of Hong Kong signed on 26 September 1984440.
If the Kowloon leased territory is a case of external limitation of
State sovereignty, where the exercise of sovereign rights or rights
stemming from sovereignty is transferred to another State under
the treaties by the parties concerned, then, Hong Kong may be said
to become a case of internal limitation of sovereignty where the
exercise of sovereign rights is given or delegated to certain local
units under the constitution or law of that State.
The Sino-British Joint Declaration of 1984 stated that :
"The Government of the People's Republic of China
declares that to recover the Hong Kong area (including Hong
Kong Island, Kowloon and the New Territories, hereinafter
referred to as Hong Kong) is the common aspiration of the
entire Chinese people, and that it has decided to resume the
exercise of sovereignty over Hong Kong with effect from 1
July 1997"
and that "The Government of the United Kingdom declares that it
will restore Hong Kong to the People's Republic of China with
effect from 1 July 1997". It is stated in the Preamble of the Basic
Law of the Hong Kong Special Administrative Region (HKSAR)
of the PRC that
"Hong Kong has been part of China's territory since
ancient times, but it was occupied by Britain after the Opium
War in 1840. On 19 December 1984, the Chinese and British
Governments signed the Joint Declaration on the question of
Hong Kong, affirming that the Government of the People's
Republic of China will resume the exercise of sovereignty over
Hong Kong on 1 July 1997, thus fulfilling the long-cherished
common aspiration of the entire Chinese people for the re-
covery of Hong Kong441."
The Basic Law of HKSAR, which, though not a constitution, is a
law of constitutional nature for the Hong Kong area after 1997, has
440. See supra, note 388.

441. For the Chinese and English texts of the Basic Law of HKSAR, see The
Basic Law of the Hong Kong Special Administrative Region of the People's
Republic of China, Hong Kong, 1990.
been enacted and promulgated on 4 April 1990 by the national

People's Congress in accordance with the Joint Declaration and the
Constitution of the PRC442. The statements in both the Joint
Declaration, as a treaty between the PRC and the United King-
dom, and the Basic Law, as a law of the PRC, confirm the idea
that Hong Kong is a part of Chinese territory, over which China
retains its sovereignty. In the latter, it is expressly provided in Arti-
cle 1 that the HKSAR to be established upon China's resumption
of the exercise of sovereignty over Hong Kong "is an integral part
of the People's Republic of China".
The HKSAR is to be established according to Article 31 of the
Constitution of the PRC, which provides that :
"The State may establish special administrative regions

when necessary. The systems to be instituted in special admi-
nistrative regions shall be prescribed by law enacted by the
National People's Congress in the light of specific condi-
tions443"
a provision which is based on the well-known principle of "one

country, two systems". The HKSAR will be "a local administrative
region of the People's Republic of China" and "will be directly
under the authority of the Central People's Government of the
People's Republic of China". But it "will enjoy a high degree of
autonomy, except in foreign and defence affairs", which distin-
guishes it from other autonomous areas of the PRC. It is further
provided that "the socialist system and socialist policies shall not be
practised in the HKSAR and that Hong Kong's previous capitalist
system and life style shall remain unchanged for 50 years"444.
It is clear that sovereignty over the HKSAR belongs to the PRC
and is to be exercised by the Central People's Government. The
Basic Law of the HKSAR is a law enacted and promulgated by the
National People's Congress of the PRC with the power of interpre-
tation vested in its Standing Committee and the power of amend-
442. The Joint Declaration provides that the basic policies of the PRC "will
be stipulated in a Basic Law of the Hong Kong Special Administrative Region
of the People's Republic of China by the National People's Congress of the
People's Republic of China".
443. The Laws of the People's Republic of China (1979-1982), p. 11.
444. Articles 1, 2, 5 and 12 of the Basic Law.
312 Wang Tieya
ment in itself445. Foreign Affairs and national defence, the essential

symbols of State sovereignty, are "the responsibilities of the Central
People's Government"44*. Besides, the Central People's Govern-
ment shall have power to appoint the chief executive and principal
officials of the executive authorities of the HKS AR447. National
laws listed in Annex III of the Basic Law are to be applied in the
HKS AR after 1 July 1997448. Laws to be enacted by the Legislative
Council of the HKS AR shall be reported to the Standing Commit-
tee of the National People's Congress for the record. The Standing
Committee shall have power to return any such law which is not in
conformity with the provisions of the Basic Law regarding affairs
within the responsibility of the Central Authorities and the rela-
tionship between the Central Authorities and the Region and the
law so returned shall immediately cease to have force449. It is
further provided that the Standing Committee of the National
People's Congress may decide to declare a state of war or a state of
emergency450. All these have shown clearly the sovereignty of the
PRC over the HKSAR and give the Central People's Government
the necessary powers to implement the sovereignty450".
On the other hand, however, the HKSAR will enjoy a high
degree of autonomy. It will be invested with executive, legislative
and independent judicial power, including that of final adjudication451.
Its government will be composed of local inhabitants452. The current
social and economic systems in Hong Kong will remain unchanged,
and so will the life-style453. It will retain the status of an inter-
national financial centre and it will have independent finances. It
may establish mutually beneficial economic relations with the
445. Article 158 provides that: "The power of interpretation of this Law shall
be vested in the Standing Committee of the National People's Congress" and
Article 159 provides that : "The power of amendment of this Law shall be inves-
ted in the National People's Congress."
446. Articles 13 and 14 of the Basic Law.
447. Article 15 of the Basic Law.
448. Annex III of the Basic Law: National laws to be applied in the
HKSAR.
450. Article 18, paragraph 4, of the Basic Law.
450a. See Wu Jianfan, "Several Issues concerning the Relationship between
the Central Government of the People's Republic of China and the Hong Kong
Special Administrative Region", in Journal of Chinese Law, Vol. 2, 1988,
pp. 66-67.
United Kingdom and other countries and it may on its own use the
name of "Hong Kong, China", maintain and develop economic
and cultural relations and conclude relevant agreements with
States, regions and relevant international organizations454. It is
also provided that the maintenance of public order in the HKSAR
will be the responsibility of the Government of HKSAR. All
these are fully elaborated in Annex I of the Sino-British Joint
Declaration of 1984 and in more detail in the Basic Law of 1990 455.
As to foreign affairs, provisions are made in Section XI of
Annex II of the Sino-British Joint Declaration : "Elaboration by
the Government of the People's Republic of China of its Basic
Policies Regarding Hong Kong", and are incorporated in the Basic
Law. The principle is that foreign affairs are the responsibility of
the Central People's Government of the People's Republic of
China. But under the conditions provided by the Joint Declaration
and in the Basic Law, the HKSAR may participate in or manage
external affairs of concern to Hong Kong. It may be represented in
the delegation of the Government of the PRC at negotiations of
direct concern to the HKSAR conducted by the Central People's
Government and may conclude and implement agreements in "the
appropriate fields". The Central People's Government shall take
measures to ensure the application of the international agreements
in the HKSAR and to enable the HKSAR to participate in interna-
tional organizations. Passports and travel documents may be issued
by the HKSAR and foreign consular and other official or semi-
official missions may be established in the HKSAR. The power to
handle external affairs given to the HKSAR is rather broad in
scope and constitutes an important aspect of the high degree of
autonomy of the HKSAR. However, the power is granted by the
PRC according to the Joint Declaration and the Basic Law. The
exercise of the power is limited to "the appropriate fields, including
the economic, trade, financial and monetary, shipping, communica-
tions, touristic, cultural and sports field"456. In general, it is to be
permitted or authorized by the Central People's Government457.
454. See Chapter V of the Basic Law.

455. Annex I of the Joint Declaration: Elaboration by the Government of
the People's Republic of China of its Basic Policies regarding Hong Kong. As
to the "high degree of autonomy" of the HKSAR, see Wu, supra, note 450a,
pp. 70-74.
457. For example, Articles 152, 153 and 155.
314 Wang Heya
The question of Hong Kong, which is left over from the past, has
been settled through negotiations for the purpose of upholding
national unity and territorial integrity of China and maintaining
the prosperity and stability of Hong Kong. The HKSAR, though
enjoying a high degree of autonomy, is not a sovereign State nor
an independent political entity. Both the Joint Declaration of 1984
and the Basic Law of 1990 lay stress on the complete sovereignty of
the PRC and, on the other hand, make the broadest allowances for
the special status of the HKSAR. A proper balance of State sover-
eignty in its full sense and the local autonomy in its high degree is
thus firmly kept. The settlement of the question of Hong Kong
may be said to furnish a good example of territorial settlement on
the basis of the distinction between the sovereignty and the exercise
of rights stemming from sovereignty, which is beneficial to national
interests and also conducive to international peace and security458.
458. A similar case is Macao which has been held on lease by Portugal and
was ceded to it in 1887. The Sino-Portuguese Joint Declaration on the Question
of Macao was signed on 13 April 1987 and the ratifications exchanged on IS
January 1988. According to the Joint Declaration, the Macao area is declared
to be a Chinese territory and the Government of the PRC will resume the exer-
cise of sovereignty over Macao with effect from 20 December 1999. Similarly,
the basic policies of the PRC of 12 points are set in the Joint Declaration and its
Annex I, which will be stipulated in a Basic Law of the Macao SAR of the PRC
by the National People's Congress of the PRC. For the Chinese text of the
Declaration, see Chinese Yearbook of International Law, 1988, pp. 581-590; for
the English text, see Beijing Review, 1987, No, 14. The Basic Law of Macao
SAR is now at the stage of drafting.
315
CHAPTER V
SOME ASPECTS OF THE CONTEMPORARY

CHINESE PERSPECTIVE OF INTERNATIONAL LAW:
(III) THE RULE PACTA SUNT SERVANDA
The rule pacta sunt servanda is so well established that it is uni-

versally admitted to be a fundamental principle of international
law459. The Charter of the United Nations provides in Article 2, as
a principle of the United Nations, that all members "shall fulfil in
good faith the obligations assumed by them in accordance with the
present Charter". Similar provisions have appeared in other inter-
national constitutive documentsAt0. As the increasing complexity of
international life in the contemporary world requires States to regu-
late their external relations more and more by treaties, the scrupu-
lous respect for treaties becomes a matter of great importance4*1.
China has a long tradition of keeping good faith and of respect
for treaties. It is a well-known saying of Confucious that : "Of the
three essentials, the greatest is good faith. Without a revenue and
without an army, a State can still exist, but it cannot exist without
good faith462." There were numerous instances in Chinese ancient
459. It is stated by the Permanent Court of Arbitration in the North Atlantic

Coast Fisheries case (1910) that "every State has to execute the obligations
incurred by treaty bonafide, and is urged thereto by the ordinary sanctions of
international law in regard to the observance of treaty obligations". United
Nations Reports of International Arbitral Awards, Vol. 11, p. 186. See the
American Law Institute, supra, note 332, Vol. I, p. 190, where the Comment
indicates that the doctrine of pacta sunt servanda lies at the core of the law of
international agreements and is perhaps the most important principle of interna-
tional law. See also T. O. Elias, New Horizons in International Law, Leiden,
1979, p. 43.
460. For instance, the Declaration on Principles of International Law
concerning Relations and Co-operation among States in Accordance with the
Charter of the United Nations of 1970 provides that : "Every State is obliged to
fulfil in good faith its obligations : (e) under treaties valid in accordance with the
generally recognized principles and rules of international law."
461. See J. P. Burlington, "International Treaties and the Clause Rebus Sic
Stantibus", in The University of Pennsylvania Law Review, Vol. 76, 1927,
p. 153.
462. See Shi, supra, note 26, p. 32. Hans Wehberg stated that in ancient
times, the principle of the sanctity of contracts "was developed in the East by
the Chaldeans, the Egyptians and the Chinese in a noteworthy way". "Pacta
Sunt Servanda", in AJIL, Vol. 53, 1959, p. 775. Manfred Lachs said that :
316 Wang Tieya
history illustrating the stress on good faith and strong condemna-

tion of the violation of the contractual agreements made. The pre-
vailing conviction was that no State could survive without keeping
its promises463. In the contemporary period, the PRC has inherited
this tradition464. Since its founding, the PRC has entered into more
than 3,000 bilateral treaties and agreements with nearly 130 coun-
tries and participated in more than 150 international conven-
tions465. It may be ranked as one of the world's leading treaty
makers. Its attitude towards treaties was well stated by Foreign
Minister Chen Yi in his speech made on 1 September 1962; he said
that:
"As to the Chinese Government, except that such interna-
tional agreements which have not been participated in and
signed by the representatives of China, the Chinese Govern-
ment always observe the international agreements which have
been participated in and signed by the representatives of
China466."
This attitude has been consistently confirmed by the practice of the
PRC in its dealings with foreign countries. In practice, it appears
that there has not been a single instance of an arbitrary breach of
an agreement467.
The following sections will deal with some problems relating
to the rule pacta sunt servanda arising out of the practice of the
PRC.
"all civilizations, from the earliest, have recognized the rule, and it has been
handed down throughout the centuries. Once States or similar communities
entered into contact and began to conclude agreements, the question of
their implementation became crucial. The oldest religions of Asia (Confu-
cianism, Buddhism, Hinduism and later Islam) paid special attention to the
obligation of complying with agreements entered into." ("Pacta Sunt Ser-
vanda", in Bernhardt, supra, note 296, Vol. 7, p. 364.)
463. See Hong, supra, note 12, p. 225 and Leng Shaochuan, "Chinese Laws" in
Larson and Jenks, supra, note 358, p. 247.
464. See, generally, Luke T. Lee, China and International Agreements: A
Study of Compliance, Leiden, 1969.
465. This is an approximate number. In the Treaty Series, there are 2,337
treaties, agreements, etc., concluded by the PRC from 1949 to 1983. The Index
to the Treaties with and Concerning China, 1662-1980, edited by Chen Chilou,
Beijing, 1989, the total number is 2,198, using the term "treaties and agree-
ments" broadly.
466. Collection of Documents, Vol. 9, 1962, p. 238.
467. See, generally, Lee, supra, note 464.
1. The Scope of Pacta

The rule pacta sunt servanda consists of two terms : "pacta" and
"servanda". Emphasis is usually laid on the latter term, because the
scrupulous respect to treaty obligations is undoubtedly an impor-
tant aspect of the rule. However, in order to give full effect to the
rule, a proper explanation to the term "pacta" is necessary468. The
question what is a "pactum" has to be answered. Article 2 of the
Vienna Convention on the Law of Treaties of 1969 defines "treaty"
as
"international agreement concluded between States in written
form and governed by international law, whether embodied in
a single document or in two or more related instruments and
in whatever its particular designation".
This is a definition given "for the purpose of the Convention",
leaving out agreements between States and other subjects of inter-
national law and oral agreements between States. According to this
definition which is reflecting the prevalent practice of States, a
treaty may be embodied in a single instrument or in two or more
related instruments and, more particularly, it may take any desig-
nation. In the draft of the International Law Commission of the
United Nations, the following appellations have been given : treaty,
convention, protocol, covenant, charter, statute, act, agreement,
modus vivendi or any other appellations469. But no special meaning
is given to each of them. International law does not lay down de-
finite rules for the names and forms of treaties470. Treaties between
States have the same binding force in spite of their different appel-
lations. The term "pacta" has never been precised in a satisfactory
way.
The Ministry of Foreign Affairs of the PRC has so far published
19 volumes of Treaty Series of the PRC, an official treaty series,
covering the years from 1949 to 19834". In the Treaty Series, there
is a total of 2,337 treaties: 2,295 bilateral treaties with 127 coun-
tries; 42 multilateral treaties and 57 semi-official agreements
468. See Joseph L. Kunz, "The Meaning and the Range of the Norm Pacta
Sunt Servanda", in AJIL, Vol. 39,1945, p. 180.
469. Yearbook of the International Law Commission, 1962, II, p. 161.
470. J. G. Starke, An Introduction to International Law, London, 1977,
p. 462 and Arnold McNair, Law of Treaties, Oxford, 1961, pp. 6 and 15.
471. Treaty Series, 19 vols., from 1949 to 1983, Beijing.
318 Wang Tieya
published in the Appendix, including mostly those entered into by

the semi-official organizations of the PRC and Japan before the
establishment of diplomatic relations between the two countries.
These treaties have been given a variety of names which include :
treaties, conventions, agreements, protocols, exchanges of notes,
exchanges of correspondence, agreed minutes, memorandum,
memorandum of understanding, measures for implementation,
declarations, communiqus or announcements, regulations, rules,
contracts and general conditions. The scope of treaties in the
Treaty Series is broad, including not only ordinary treaties, agree-
ments, etc., but declarations, communiqus or announcements. The
idea upon which the Treaty Series is based seems to be that of
official documents signed by high authorities of the States or
approved under the authorization of the governments expressing
that the consensual engagement of both parties would be con-
sidered as international agreements with binding force and are in-
cluded in the Treaty Series as a category of treaties.
In the practice of the PRC, the declarations, communiqus or
announcements are either bilateral or multilateral in form, with
only one exception. The exception is the Agreed Parallel Uni-
lateral Statements in relation to the problem of repatriation of ci-
vilians, signed by the ambassadors of the PRC and the United States
on 1 September 1955m. These Agreed Parallel Unilateral State-
ments were published in the Treaty Series and endowed with the
character of a treaty by the Chinese Government, whereas the Uni-
ted States Government denied them to be either a treaty or an
executive agreement and they were not included in its official col-
lection of treaties. The form was at that time preferred by the Uni-
ted States as it wanted to avoid the imphcation of the recognition
of the PRC by the United States. On the Chinese side, this was an
exceptional case. In consideration of the binding force, it preferred
joint declarations, communiqus or announcements. In 1960,
during the negotiations of the problem of the exchange of corres-
pondents between the ambassadors of the PRC and the United
States, the latter submitted a draft of agreement, again in the form
of statements, to be issued by the ambassadors of the two coun-
tries. This time, however, the Chinese side declined to accept the
draft and the spokesman for the Foreign Minister made a state-
472. Treaty Series, 1955, Vol. 4, pp. 1-2.

ment on 13 September in which he said in regard to the force of the

agreement that :
"The American draft adopts the form of separate state-
ments of ambassadors of the two countries. We remember
that the agreement of the two sides on the return of civilians
to their countries also took this form. But the fact that the
United States side has so far failed to seriously implement the
agreement shows that this form does not have enough binding
force on the United States side. To prevent the United States
side from again violating the agreement, the Chinese side reso-
lutely maintains that all agreements between the two sides
must take the form of joint announcements of both sides and
no longer take that of statements issued by two sides473."
This statement shows that, in the opinion of the PRC, the agreed
parallel unilateral statements can constitute a binding agreement,
the same as the joint declarations, communiqus or announce-
ments, but it preferred the latter in dealing with the United States.
In the practice of the PRC, the function of the joint declarations,
communiqus or announcements is manifold. They have been used
in most cases for announcing the establishment of the diplomatic
relations of the PRC with foreign countries. After the visits of the
heads of States or Governments or high officials of the govern-
ments, joint declarations, communiqus or announcements have
usually been issued setting forth the results of the negotiations
made during the visits. These joint declarations, communiqus and
announcements have not only political importance but also legal
significance. This may be illustrated by the Joint Communiqus of
the PRC and the United States of 28 February 1972, 1 January
1979 and 17 August 1982474. The first Joint Communiqu, called
the Shanghai Communiqu, marked the beginning of the normali-
zation of relations between the PRC and the United States ; the
second Joint Communiqu announced the establishment of the
diplomatic relations of both countries; and the third Joint
Communiqu, called the Communiqu of 17 August, reiterated the
principles enunciated in the second Joint Communiqu on the
establishment of diplomatic relations and indicated the commit-
473. Collection of Documents, Vol. 7, 1960, p. 240.

474. Treaty Series, Vol. 19, 1972, pp. 20-24; Vol. 26, 1979, pp. 7-8; and
Chinese Yearbook of International Law, 1983, pp. 598-599.
320 Wang Tieya
ments of the United States with regard to the problem of arms

sales to Taiwan. These three Joint Communiqus set forth the
principles of future conduct of both parties and provided for the
obligations they assumed. The Joint Communiqu between the
Government of the PRC and the Government of Japan signed on
29 September 1972 was even more explicit. It declared the end of
the abnormal state between the countries and the Chinese renoun-
ced the claim of war indemnity against Japan. In the Joint Com-
muniqu, the Japanese Government recognized the Government of
the PRC as the only legitimate government of China and fully
understood and respected the stand of the Chinese Government
that Taiwan was an inalienable part of the territory of the PRC.
The two Governments decided to base their relations on the Five
Principles of Peaceful Coexistence and agreed to establish diploma-
tic relations and to negotiate for the conclusion of treaties of peace
and amity and others. This Joint Communiqu, which was ampli-
fied by the Treaty of Peace and Amity between the PRC and
Japan signed on 12 August 1978, becomes the legal basis for the
relations between the two countries475.
The Joint Declaration of the Government of the PRC and the
Government of the United Kingdom and Northern Ireland on the
Question of Hong Kong of 1984 is peculiar476. It is not in the form
of a formal treaty. It is not even a simple declaration. In fact, it is a
declaration composed of six declarations. One of which, made by
the United Kingdom, declares that Hong Kong will be restored to
the PRC with effect from 1 July 1997 and the Government of the
PRC makes two declarations, in one of which it declares that it
decides to resume the exercise of sovereignty over Hong Kong with
effect from 1 July 1997 while in another it declares its basic policies
regarding Hong Kong in 12 points. The remaining three declara-
tions are made by both Governments relating to the transitional
period, the Sino-British Joint Liaison Group and land leases in
Hong Kong. Besides, the Joint Declaration has three Annexes and
memoranda to be exchanged by the two sides. Annex I, entitled
"Elaboration by the Government of the People's Republic of China
on its Basic Policies Regarding Hong Kong" is very important to
475. Treaty Series, Vol. 19, 1972, pp. 6-8 ; Vol. 25, 1978, pp. 1-2.
476. See supra, note 388 ; ibid. The case of the Sino-Portuguese Joint Decla-
ration on the Question of Macao of 1987 is similar.
the future status of Hong Kong, while the other two deal separately
with the Sino-British Joint Liaison Group and Land Leases in
Hong Kong in more detail. The Joint Declaration was initialled by
the representatives of the two countries on 6 February 1984 and
was formally signed by their Prime Ministers on 19 December of
the same year. On the Chinese side, it was submitted to the Stan-
ding Committee of the National People's Congress and the Natio-
nal People's Congress itself for consideration and the latter decided
to ratify it on 10 April 1985. The fact that the decision to ratify it
was made by the National People's Congress itself is extraordinary
because, according to the Chinese Constitution, "to decide on the
ratification or abrogation of treaties and important agreements
concluded with foreign States" (Article 67) is one of the functions
and powers of the Standing Committee. The Constitution does not,
however, exclude the power of the National People's Congress to
decide on the ratification of treaties and it is provided in Article 62
that the National People's Congress may exercise such other func-
tions and powers (than those provided in the Article) as the highest
organ of State power should exercise. The Joint Declaration en-
tered into force on 27 May 1985 when the exchange of instruments
of ratification took place in Beijing on that date and it was regis-
tered with the Secretariat of the United Nations by the Chinese
representative on 12 June 1985, in accordance with Article 102 of
the United Nations Charter. It is evident that the Joint Declara-
tion, though not in treaty form, is a solemn agreement binding on
both parties4".
Joint declarations, communiqus or announcements have become
frequent phenomena during recent years. A question has been
raised among international law writers whether these are binding
agreements between States. Opinions are conflicting478. There is a
477. See the Report of the Foreign Minister Wu Xueqian to the Standing
Committee of the National People's Congress on 6 November 1984, in Selected
Documents on the Question of Hong Kong, Beijing, p. 32.
478. For the discussion of this problem, see Oscar Schachter, "The Twilight
Existence of Non-binding Agreements", AJIL, Vol. 71, 1977, and "International
Law in Theory and Practice : General Course in International Law", Collected
Courses, Vol. 178, 1982-V, pp. 123-132; Carl August Fleischhauer, "Declara-
tions", in Bernhardt, supra, note 296, Vol. 7; Fritz Munch, "Non-binding
Agreements", Zeitschrift fr Auslndisches ffentliches Recht und Vlkerrecht,
Vol. 29, 1969, and "Non-binding Agreements", in Bernhardt, supra, note 296,
Vol. 7; and McNair, supra, note 470, p. 11, where he said that: "Written decla-
rations, either joint or separate, can constitute a valid agreement."
322 Wang Tieya
tendency to classify them as non-binding agreements. It is said that

they are mere declarations of intent, declarations of common pur-
pose, declarations of policy or statements of principle479. They do
not define with preciseness the obligations between States. They
have no legal force and can only be politically and morally binding.
The term, "no-binding agreement" is really an unhappy one. As
international law has no rules for the name and form of treaties, an
agreement properly reached by States should be a genuine agree-
ment binding upon them. Lack of precision and political nature of
the provisions cannot prevent them from having equally binding
force, though they sometimes need more subsequent concrete
agreements for their application480.
The intention of the parties has been suggested to be the decisive
factor in determining whether an international agreement is legally
binding or non-binding481. But the intention is usually not expres-
sed and the implied intention is not easy to ascertain. The presump-
tion may be that the agreement is legally binding or that it is not
legally binding. The International Court of Justice made some
interesting remarks about a joint communiqu in the Aegean Sea
Continental Shelf case (1987) :
"On the question of form, the Court needs only observe
that it knows of no rule of international law which might pre-
clude a joint communiqu from constituting an international
agreement to submit a dispute to arbitration or judicial set-
tlement (cf. Arts. 2, 3, and 11 of the Vienna Convention on the
Law of Treaties). Accordingly, whether the Brussels commu-
niqu of 31 May 1975 does or does not constitute such an
agreement essentially depends on the nature of the act or tran-
sactions to which the communiqu gives expression; and it
does not settle the question simply to refer to the form a
communiqu in which the act or transaction is embodied.
On the contrary, in determining what was indeed the nature
479. Munch, in Zeitschrift, supra, note 478, pp. 1-2 and in Bernhardt, supra,
note 296, Vol. 7, p. 357.
480. Schachter, "International Law in Theory and Practice", supra, note 479,
pp. 127-128. His opinion is that: "The conclusion that non-binding agreements
are not governed by international law does not however remove them entirely
from having legal implication", "The Twilight Existence", supra, note 478,
p. 301.
481. Ibid.
of the act or transaction embodied in the Brussels communi-

qu, the Court must have regard above all to its actual terms
and to the particular circumstances in which it was drawn
up482."
The opinion of the Court on this question is not definite. The
theory and practice leave much to be discussed and explained.
In the practice of the PRC, the problem of the binding force of
the Cairo Declaration was involved in the debate on the legal status
of Taiwan. As a result of the Cairo Conference of three war allies,
China, the United States and the United Kingdom, a declaration
was issued on 1 December 1943483. The declaration stated that it
was the purpose of the three countries to strip Japan of all the
islands in the Pacific which she had seized or occupied since the
beginning of the First World War, to restore to China territories
that Japan had stolen from China, such as Manchuria, Formosa
and the Pescadores, and to effect the independence of Korea. It
was later accepted and confirmed, in the Potsdam Proclamation of
26 July 1945, in which it was provided that the terms of the Cairo
Declaration should be carried out and Japanese sovereignty should
be limited to the principal islands of Japan and such minor islands
as would be determined484. In the Instrument of Unconditional
Surrender of 2 September 1945, Japan accepted the provisions of
the Potsdam Proclamation485.
In the debate on the status of Taiwan, the British Foreign Secre-
tary, Sir Anthony Eden, stated on 4 February 1955 the position of
the United Kingdom as follows :
"Cairo Declaration . . . was a statement of intent that For-
mosa [Taiwan] should be retroceded to China after the war.
This retrocession has, in fact, never taken place because of the
difficulties arising from the existence of the two entities to
represent China and the differences among the powers as to
the status of these entities. The Potsdam Declaration . . . laid
down as one of the conditions for the Japanese peace that the
terms of the Cairo Declaration should be carried out. In Sep-
tember 1945, the administration of Formosa was taken over
482. International Court of Justice Reports 1978, p. 39.

483. British and Foreign State Papers, Vol. 154, p. 363.
484. Ibid, Vol. 154, p. 366.
485. United Nations Treaty Series, Vol. 139, p. 387.
324 Wang Tieya
from the Japanese by Chinese forces at the direction of the

Supreme Commander of the Allied Powers, but this was not a
cession, nor did it in itself involve any change of sovereignty.
The arrangements made with Chiang Kai-shek put him there
on a basis of military occupation pending further arrange-
ments and did not of themselves constitute the territory as
Chinese486."
This statement characterized the Cairo Declaration as a statement
of intent, but did not make clear the legal significance of the Cairo
Declaration as to the retrocession of Taiwan to China.
The position of the United States was contradictory. On 5 Janu-
ary 1950, President Truman, after mentioning the Cairo Declar-
ation and the Potsdam Declaration, stated that
". . . in keeping with these declarations, Formosa was surren-
dered to Generalissimo Chiang Kai-shek and for the past four
years, the United States and the other Allied Powers have
accepted the exercise of Chinese authority over the Island487".
The Secretary of State's statement on the same day was more
explicit : it said that, the Cairo Declaration
"was incorporated in the Declaration at Potsdam and that the
Declaration at Potsdam was conveyed to the Japanese as one
of the terms of their surrender and was accepted by them, and
the surrender was made on that basis. Shortly after that, the
Island of Formosa was turned over to the Chinese in accor-
dance with the declaration made. The Chinese have adminis-
tered Formosa for four years. Neither the United States nor
any other ally ever questioned that authority and that occupa-
tion. When Formosa was made a province of China nobody
raised any lawyers' doubts about that. That was regarded as
in accordance with the commitments488."
These statements showed that the Cairo Declaration and the Pots-
dam Declaration were considered by the United States as contain-
ing binding commitments upon which the legal status of Taiwan
486. House of Commons Debate, Vol. 536, col. 159,4 February 1955, quoted
in Crawford, supra, note 428, pp. 147-149.
487. Department of State Bulletin, Vol. 22, 1950, p. 79.
488. Ibid., Vol. 22, 1950, pp. 80-81.
was based. Its position changed radically, however, after the out-
break of the Korean War. President Truman declared abruptly on
27 June 1950 that the "determination of the future status of For-
mosa must await the restoration of security in the Pacific, a peace
settlement with Japan, or consideration by the United Nations"489.
In the statement, there was no mention of the Cairo Declaration
and the Potsdam Declaration and no legal ground was given to
explain the new position. The change of position was based on
purely political considerations and was not legally justified.
The position of the PRC in regard to the Cairo Declaration and
the Potsdam Declaration was consistent and clear. It had on a
number of occasions insisted that these declarations were interna-
tional agreements binding upon all signatories. The first expression
of the official attitude of the Chinese Government was made in
1950 by Premier Zhou En-lai in a cablegram to the Secretary-
General of the United Nations on 6 July 1950, shortly after the
outbreak of the Korean War and the dispatch of the Seventh Fleet
of the United States to the Taiwan Straits, in which he declared
that
"Taiwan is an inalienable part of the territory of China.
This is not only a fact universally recognized in the world, but
is also confirmed by the Cairo Declaration, the Potsdam
Declaration and the situation since the surrender of Japan490."
In another cablegram to the President of the Security Council of
the United Nations on 24 August 1950, he declared more explicitly
that:
"Taiwan is an integral part of China. This is not only a fact
based on history, confirmed by the situation since the surren-
der of Japan, but it is also stipulated in the Cairo Declaration
of 1943 and the Potsdam Declaration of 1945 as binding
international agreements which the United States Government
has pledged itself to respect and observe491."
Later, on 4 December 1950, in the Statement relating to Problems
of Peace with Japan, Foreign Minister Zhou En-lai pointed out
489. Ibid., Vol. 23,1950, p. 5.

491. Ibid., p. 134.
326 Wang Tieya
again that the Cairo Declaration, the Yalta Agreement, the Pots-
dam Declaration, as well as the Basic Policies for Japan after its
surrender adopted by the members of the Far East Commission on
19 June 1947, were international documents adhered to and signed
by the United States and were the main foundation for the com-
mon peace with Japan, but the United States Government had
openly destroyed it492. AH these statements show the attitude of the
PRC that the declarations, communiqus and announcements, like
the Cairo Declaration and the Potsdam Declaration, are binding
international agreements which the parties concerned must scrupu-
lously observe493.
2. Treaties and Municipal Law

The rule pacta sunt servanda imposes upon the States the duty
to carry out in good faith their obligations arising from treaties. It
is a generally recognized principle of international law that a State
cannot invoke provisions in its laws as an excuse for its failure to
perform this duty. In the Advisory Opinion concerning the Greco-
Bulgarian Communities (1932), the Permanent Court of Interna-
tional Justice stated that :
"a State which has contracted valid international obligations
is bound to make in its legislation such modifications as may
be necessary to ensure the fulfilment of the obligations
undertaken",

493. Immediately after the signing of the Sino-Japanese Joint Statement of
29 September 1972, Japan's Foreign Minister Ohira held a press conference in
Beijing in which he stated :
"In addition, the stand of the Japanese Government on the Taiwan ques-
tion has been stated in Article 3. The Cairo Declaration stipulates that
Taiwan be restored to China and Japan has accepted the Potsdam Procla-
mation that succeeded the above-mentioned declaration. The Proclamation
stipulates in Article 8 that 'the terms of the Cairo Declaration shall be
carried out'. Therefore, it is only natural for the Japanese Government to
adhere to its stand of complying with the Potsdam Proclamation .. "(Bei-
jing Review, Vol. 15, No. 40, 6 October 1972.)
This statement shows that the Potsdam Proclamation which succeeded the
Cairo Declaration is an agreement binding upon Japan.
For the study of the legal force of the Cairo Declaration, the Potsdam Pro-
clamation and the instrument of surrender in relation to the status of Taiwan,
see Hongdah Chi (ed.), China and the Question of Taiwan : Documents and
Analysis, New York, 1973.
and then pronounced that :

"In the first place it is a generally accepted principle of
international law that in the relations between powers who are
contracting parties to a treaty, the provisions of municipal law
cannot prevail over those of the treaty494."
Again, in the Advisory Opinion concerning the Treatment of
Polish Nationals in Danzig (1932), the Court pronounced that :
"It should however be observed that, while on the one
hand, according to generally accepted principles, a State can-
not rely as against another State, on the provision of the lat-
ter's constitution, but only on international law and interna-
tional obligations duly accepted, on the other hand and
conversly, a State cannot adduce as against another State its
own constitution with a view to evading obligations incum-
bent upon it under international law or treaties in force49S."
The Vienna Convention on the Law of Treaties provides in Article
27 that : "A party may not invoke the provisions of its internal law
as justification for its failure to perform a treaty."
These announcements of the Permanent Court and the provi-
sions of the Convention have concern with the relations with muni-
cipal law in the international sphere. In the municipal sphere,
however, the practices of States are different as to the problem
what is the status of treaties in municipal law. The problem has two
aspects : one is how treaties are applied internally? While the other
is which has superior force, treaties or laws? In some countries,
treaties acquire binding force as municipal law and are directly
applied internally, and, in others, laws enacted by the legislature
are required for the application of treaties internally. As to the
second aspect of the problem, some countries consider treaties as
equal to municipal law, with the same force and the latter super-
seding the former, while, in other countries, treaties have superior
force over municipal law, with the exception of constitutional
law496.
494. Permanent Court of International Justice, Series B, No. 17, 1932, p. 32.
495. Permanent Court of International Justice, Series A/B, No. 44, 1932,
p. 24.
496. A. Cassese, "Modern Constitutions and International Law", Collected
Courses, Vol. 192, 1985-III, pp. 394-412.
328 Wang Tieya
According to the Constitution of the PRC of 1982, the National

People's Congress is "the highest organ of State power and its
Standing Committee is its permanent body" (Article 57)4". As to
the law-enacting procedure, Article 62 provides that one of the
functions and powers of the National People's Congress is "to
enact and amend basic laws governing criminal offences, civil
affairs, the State organs and other matters" and Article 67 provides
that one of the functions of the Standing Committee of the Natio-
nal People's Congress is "to enact and amend laws, with the excep-
tion of those which should be enacted by the National People's
Congress"498. And according to Article 80, the President of the
PRC "promulgates statutes" in pursuance of the decisions of the
National People's Congress and its Standing Committee499. As to
the treaty-making procedure, the Constitution provides as follows :
the State Council is to "conclude treaties and agreements with
foreign States" (Article 89) and the Standing Committee of the
National People's Congress is "to decide on the ratification or
abrogation of treaties and important agreements concluded with
foreign States" (Article 67)500. Exceptionally, the decision may also
be made by the National People's Congress itself according to Arti-
cle (62) which provides that it has the power "to exercise such other
functions and powers as the highest organ of State power should
exercise"501, as the case of the Sino-British Joint Declaration on the
QuestioA^fjong Kong of 1984. After the decisions are made,
treaties are To be ratified by the President of the PRC (Article
81)502. The procedures of law enacting and treaty making are not
the same, but they have similarities in that, generally, it is the Stan-
ding Committee of the National People's Congress which has the
power to enact laws and to decide to ratify treaties, and both laws
and treaties are to be promulgated by the President of the PRC. In
practice, laws and treaties come into force upon promulgation. In
the Chinese legal system, therefore, laws and treaties appear to
have equal legal force.
In the PRC, as a general rule, there is no need of legislative

498. Ibid.,pp. 17-18.
499. Ibid., p. 21.
500. Ibid., pp. 19 and 23.
501. Ibid., p. 17.
502. Ibid., p. 21.
enactment for the implementation of treaties. The internal effect of

treaties comes immediately upon promulgation of the President of
the PRC. Sometimes, however, the Standing Committee of the
National People's Congress, in the exercise of its power of enacting
laws, may enact special laws for implementing the treaties concer-
ned. A notable case is that of the Regulations concerning Diploma-
tic Privileges and Immunities of 1986 s03. The purpose of the Regu-
lations is to define the diplomatic privileges and immunities of
foreign embassies and members of embassies in the PRC in order
to facilitate the efficient performance of their functions as represen-
ting their States. The basis of the Regulations is the relevant pro-
visions of the Vienna Convention on Diplomatic Relations of 1961,
to which the PRC acceded on 26 November 1975. Most of the
provisions of the Regulations are similar to those of the Conven-
tion while some of them are supplementary in nature, inserted in
accordance with the prevalent practice of the PRC. There appears
no conflict between the Regulations and the Convention. However,
in order to solve the possible conflict, it is expressly provided in
Article 27 of the Regulations that :
"If international treaties concluded or acceded to by China
have different provisions, the provisions of the treaties shall be
implemented unless the provisions are ones upon which China
has announced reservations504."
By "international treaties" it is naturally meant to include the
Vienna Convention of 1961. The PRC has made reservations to
three articles of the Convention while acceding to it on 24 April
1964: Articles 14 and 16 relating to nuncios and internuncios and
paragraphs 2, 3 and 4 of Article 37 relating to the privileges and
immunities of members of the administrative and technical staff,
members of the service staff and private servants of members of the
diplomatic mission. The reservation to paragraphs 2, 3 and 4 of
Article 37 was, however, withdrawn on 15 September 1980. The
503. The Laws of the People's Republic of China (1983-1986), pp. 283-288.
There are some other cases : the Ministry of Public Security promulgated in
1960 regulations for implementing the provisions of the Sino-Indonesian Dual
Nationality Treaty and the Bureau of Ship Inspection published in 1959 a
Manual for Load Lines of Ocean-faring Ships to give effect to the 1930 Interna-
tional Load Line Convention, to which PRC acceded in 1955. See Hsiung,
330 Wang Tieya
whole Convention has thus full effect in the PRC with the only
exception to exclude "nuncios" and "internuncios" from the classes
of the heads of diplomatic missionsSM.
The problem of the conflict of treaties and laws in the municipal
sphere has different solutions in various countries. After an exten-
sive study, Professor Li classifies them into four categories: (1)
superiority of municipal law over a treaty ; (2) equality of munici-
pal law with a treaty; (3) superiority of a treaty over municipal
law; and (4) superiority of a treaty over constitutional law506. The
PRC is classified as belonging to the third category.
It is to be noted that the Constitution of the PRC has no express
provision in respect to the relative position of treaties and laws. As
mentioned above, from the procedures of law-enacting and treaty
making, it appears that laws and treaties have equal legal force.
However, the problem is how to solve the conflict when the laws
are inconsistent with the treaties. Article 27 of the Regulations
concerning Diplomatic Privileges and Immunities of 1986 gives
superiority to the provisions of the Vienna Convention on Diplo-
matic Relations of 1961 over those of the Regulations.
Besides, there is an article in the Income Tax Law of the PRC
for Chinese-Foreign Equity Joint Ventures of 1980 which provides
that:
"When agreements on avoidance of double taxation have
been concluded between the Government of the People's
Republic of China and foreign governments, income tax
credits shall be handled in accordance with the provisions of
the respective agreements" (Article 16, paragraph 2)507.
505. See Series of Multilateral Treaties of the People's Republic of China, ed.
by the Department of Treaty and Law of the Ministry of Foreign Affairs, PRC,
Vol. 1, Beijing, 1987, p. 772, editor's note.
506. Li, Law of Treaties, supra, note 309, p. 393. According to Cassese,
modem constitutions fall into four groups :
"(1) those which do not say anything about the implementation of inter-
national treaties ; (2) those which establish that treaty obligations must be
complied with by all citizens and officials within the State, but do not grant
treaties higher status than ordinary legislation ; (3) those which take a step
forward and lay down the principle that national lawmakers cannot alter or
supersede the provisions of treaties by enacting new law; and (4) those
which go to the extreme of allowing treaties to modify or revise constitu-
tional provisions." (Supra, note 496, p. 394.)
Similarly, Article 17 of the Income Tax Law of the PRC for

Foreign Enterprises of 1981 provides that:
"When agreements on tax payment have been concluded
between the Government of the People's Republic of China
and foreign governments, matters concerning tax payment shall
be handled in accordance with the provision of the respective
agreements508."
Again, Article 9 of the Trademark Law of the PRC of 1982 pro-
vides that :
"Where a foreigner or foreign enterprise applies for trade
mark registration in China, the matter shall be handled in
accordance with agreements concluded between the country
to which the applicant belongs and the People's Republic of
China, or any international treaty to which both countries are
parties, or on the basis of the principle of reciprocity509."
The wording of these provisions is not the same, but they all signify
that treaties take precedence over laws even in the municipal
sphere. However, they are specific in nature and are related only to
those specific matters which the laws concerned regulate.
Of more general nature are the provisions of the Civil Proce-
dural Law of the PRC (for Trial Implementation) of 1982 and the
General Principles of the Civil Law of the PRC of 1986. Article
189 of the former provides that :
"If an international treaty concluded or acceded to by the
People's Republic of China contains provisions differing from
those found in this law, the provisions of the international
treaty shall apply, unless the provisions are ones to which
China has announced reservations"
and Article 142 of the latter changes the phrase "differing from
those found in this law" to "differing from those in the civil laws of
the People's Republic of China" and runs as follows :
"If any international treaty concluded or acceded to by the
People's Republic of China containing provisions different
508. Ibid, p. 249.

509. Ibid., p. 306.
332 Wang Tieya
from those in the civil laws of the People's Republic of China,

the provisions of the international treaty shall apply, unless
the provisions are ones to which the People's Republic of
China has announced reservations M0."
It should also be noted that the Standing Committee of the Na-
tional People's Congress has adopted on 23 June 1987 a decision
which declares that "the PRC shall, within the limits of its treaty
obligations, exercise criminal jurisdiction over the crimes provi-
ded in the international treaties which the PRC concluded or ac-
ceded"5". These provisions show that they have a broader scope of
application, that the provisions of treaties take effect internally
without their "transformation" into laws, and that the superior
force of the provisions of treaties over those of laws even in the
municipal sphere is established and the rule lex posteriori derogat
priori does not apply.
Neverthess, these provisions are contained in ordinary laws.
Though these laws may be considered as basic laws enacted by the
National People's Congress as provided by Article 62 of the Consti-
tution, especially that the General Principles of the Civil Law were
actually adopted by the National People's Congress5I2, yet they are
not of a constitutional nature and cannot have the same effect as
provisions of the constitution, such as, for example Article 94 of
the Netherlands Constitution which reads :
"Statutory regulations in force within the Kingdom shall
not be applicable if such application is in conflict with provi-
sions of treaties that are binding on all persons or of resolu-
tion by international institutions513."
Besides, these provisions have to leave the practice to determine the
meaning and scope of the term "treaty" they use: whether it
denotes "treaty" in its narrow sense, that is, an international
agreement with the designation of "treaty", or it is to include "trea-
510. The Laws of the People's Republic of China (1983-1986), pp. 247 and 291.
511. Bulletin of the Standing Committee of National People's Congress (in
Chinese), 1987, No. 4, p. 96.
512. It was adopted at the Fourth Session of the Sixth National People's
Congress, promulgated by the President of the PRC on 12 April 1986. Ibid.,
p. 225.
513. See Cassese, supra, note 496, p. 411.
ties and important agreements concluded with foreign States", as

provided in Article 67 of the Constitution requiring the decision to
be ratified by the Standing Committee of the National People's
Congress, or even to include "treaties and agreements" to be
concluded by the State Council according to Article 89 of the
Constitution.
In any event, however, a tendency during recent years in the
PRC, as testified by the development from the provisions of the
Income Tax Law for Chinese-Foreign Equity Joint Ventures of
1980 to that of the General Principles of the Civil Law of 1986, is
that treaties will be given superiority over laws and the provisions
of treaties will be applied internally whether they are concluded
before or after the enactment of laws. This tendency, as indicated
by a Chinese writer, "manifests the resoluteness of China to put
into effect the principle that treaties must be scrupulously
respected"514.
3. The Unequal Treaties

The rule pacta sunt servanda means that treaties must be scrupu-
lously observed. This is not, however, an absolute rule admitting of
no exception515. On the contrary, both theory and practice admit
some exceptions to the rule. The Vienna Convention on the Law of
Treaties of 1969 states the rule pacta sunt servanda as: "Every
treaty in force is binding upon the parties to it and must be per-
formed by them in good faith." A treaty which is not in force is not
governed by the rule. Article 52 of the Convention provides that :
"A treaty is void if its conclusion has been procured by the threat
or use of force in violation of the principles" of international law
embodied in the Charter of the United Nations." This constitutes
one important exception to the rule pacta sunt servanda. Another
514. Li, supra, note 309, p. 395.

515. Lauterpacht clearly stated that the rule of pacta sunt servanda "is of
relative validity". There are promises which the law forbids and which it will not
enforce; there are promises which the law does not forbid, but which, never-
theless, it will not enforce; there are, finally, promises, which the law will not
enforce after certain events have taken place, supra, note 425, p. 168. J. B.
Whitton pointed out that the rule pacta sunt servanda did not say that "All
treaties have obligatory force", but rather that "Certain treaties have obligatory
force", "La rgle 'Pacta Sunt Servanda'", Recueil des cours, vol. 49, 1934. See
also J. W. Garner, "The Doctrine of Rebus Sic Stantibus and the Termination
of Treaties", AJIL, Vol. 21, 1927, p. 511.
334 Wang Tieya
exception is provided in Article 53 that: "A treaty is void if, at

the time of its conclusion, it conflicts with a peremptory norm of
general international law." Unequal treaties may be considered as a
category of treaties which also constitutes an exception to the rule.
The concept of unequal treaties has appeared in the classical
literature of international law. Grotius made a distinction that equal
treaties bore equally on contracting parties and unequal treaties
lacked reciprocity and imposed permanent or temporary burdens
on one of the parties516. Zouche indicated that, under an equal
treaty, the parties were "under like obligations", while under an
unequal treaty, one contracting party was "bound to do more than
the other", or was "bound to recognize the other as his superior"517.
Vattel offered a more comprehensive doctrine on the subject. He
defined equal treaties as "those in which the contracting parties
promise the same things, or things that are equivalent, or, finally,
things that are equitably proportioned, so that the conditions of the
parties are equal". On the other hand, "unequal treaties were those
in which the allies do not reciprocally promise to each other the
same things, or things equivalent"518. The idea of distinguishing
equal treaties and unequal treaties faded away during the ages
when force and inequality became the decisive factors in the inter-
national life and the concept of unequal treaties was discarded in
the theory of international law under the influence of positivism.
The idea has revived, however, after the First World War and
became a subject of interest on which there was wide discussion,
particularly after the Second World War when a number of new
States were liberated from the colonial rule519.
516. Hugo Grotius, De jure belli ac pacis, translated by Francis W. Kelsey,

1925, Vol. II, pp. 394-397.
517. Richard Zouche, Iuris et iudicii feciales, sive, iuris inter gentes, trans-
lated by J. L. Brierly, Washington, D.C., 1911; p. 25.
518. Emerich de Vattel, Droit des gens, translated by Joseph Chitty, 1858,
pp. 198-199.
519. A special study has been made on the problem of unequal treaties in
international law: Chen Lung Fong, State Succession Relating to Unequal
Treaties, Connecticut, 1974; M. H. Haekel, "Les traits ingaux", Revue gyp-
tienne de droit international, 1949; Milan Markovic, "Les traits ingaux en
droit international", in Jugoslovenska Revizia Za Medunarodno Pravo, Vol. 17,
1970; Werner Morva, "Unequal Treaties", in Bernhardt, supra, note 296; Cor-
nelius Murphy, "Economic Duress and Unequal Treaties", in Vanderbilt Jour-
nal of international Law, Vol. 11, 1970; Fariboz Nozari, Unequal Treaties in
International Law, Stockholm, 1971 ; Prem Varma, "Unequal Treaties in
Modern International Law", Eastern Journal of International Law, Vol. 7,
1975.
In ancient China, a distinction between equal and unequal

treaties had been made according to the relative strength of the
contracting States. The unequal treaties were sometimes condem-
ned as against "the moral code of conduct". Particularly, it was
maintained that, though treaties had to be respected, yet treaties
signed under duress were not binding and could be justifiably dis-
regarded by the signatory States. Zuo Zhuan commented that:
"God does not require adherence to a forced covenant ; it may be
broken520."
The modern history of China is a history of unequal treaties, as
narrated briefly in Section 2 of Chapter II. Resentment among the
Chinese people against the humiliating treaties imposed by foreign
powers grew stronger and stronger in the late nineteenth century
and the early twentieth century. With the rapid rise of nationalism
and under the influence of the First World War and the Soviet
Revolution, the movement for the abolition of unequal treaties
took a practical shape. Both the warlord government in Beijing and
the Kuomintang government in Nanjing made efforts for the abo-
lition, but they failed on account of the strong opposition of the
strong powers. At last, it was only the conclusion of new treaties in
1943 and the founding of the PRC in 1949 that signalled the end of
the history of unequal treaties in China.
"Unequal treaties" has been criticized as "too vague" an idea and
has been regarded as more political than legal in nature521. It can-
not be denied, however, that unequal treaties do exist in the prac-
tice of States and the term has been employed on various occa-
sions522. Many classes of treaties would fall under their general
heading and they have their juridical significance different from
520. Quoted in Leng, supra, note 463, p. 248.

521. Whilst western jurists oppose the doctrine on the ground that it is too
vague, the principle is regarded as entirely just by newly independent States, and
it is no longer confined to the thinking of jurists from communist States, see
Brownlie, supra, note 257, p. 496. Western jurists tended to regard it in political
rather than legal terms, see Morva, supra, note 519, p. 514.
522. See Nozari, supra, note 519, p. 114, where he pointed out that after the
Second World War, the debate on unequal treaties had been more lively and on
several occasions, particularly in the General Assembly and other organs of the
United Nations, States had employed the term "unequal treaties" and had in-
voked inequality of some of their treaties. The term has not been used in the
Vienna Convention on the Law of Treaties of 1969, but it has been used in the
comments of some States on the drafts, particularly in connection with the rules
concerning coercion of a State by the threat or use of force and the jus cogens.
Nozari, ibid.
336 Wang Tieya
ordinary equal treaties523. An exact definition of the term, just like

other terms of international law, is really not easy to find and there
is no unanimity of opinion among international lawyers. Yet,
general agreement has evolved from the discussion that there are
at least two elements which constitute the main characteristics of the
concept of unequal treaties "4. One is that unequal treaties have
contents of unequal and non-reciprocal nature and the other is that
unequal treaties are imposed by force or threat of force. As indica-
ted by a scholar, treaties are seen as "unequal treaties" for at least
two reasons : first, because such treaties involved "gross inequali-
ties of treaty obligations"; second, "because they were brought
about through the use or the threat of force"525. The two elements
are closely related with emphasis on either of them in particular
cases. In 1957, the Conference of Afro-Asian Jurists held in
Damascus adopted a resolution on unequal treaties in which it
decided to use the term "unequal treaties", defining it as treaties
"imposed by the stronger State upon the weak State" and "estab-
lishing gross inequality between the obligations of the parties"526.
523. McNair has considered the capitulations treaties of certain States, for
instance China and Turkey, as a sample of the "unequal treaties", "Equality in
International Law", Michigan Law Review, Vol. 26, 1928-1929, p. 138. Detter
referred to the capitulations treaties with China as "the classical example of 'un-
equal treaties'", supra, note 519, p. 1077.
524. See Nozari, supra, note 519, pp. 118-119 ; he defined the unequal treaty as
"a treaty which, through the application of direct or indirect pressure, is
imposed, wholly or partly, by a powerful State on a weaker State a
situation which is the consequence of a State of inequality existing between
the contracting parties at the time of the inception of the treaty, and which
enables the powerful State to dictate its wishes to the weaker State" (ibid.,
p. 119, see also ibid., pp. 77-78).
According to Gong, unequal treaties
"can be defined as those treaties which fulfil at least two of the following
three related conditions: (1) they imposed unequal obligations in practice;
(2) they are imposed through the use or threat of force ; and (3) they are
perceived to be 'unequal' treaties, often because they impair the sovereignty
of one of the treaty parties" (supra, note 54, p. 67).
Vassilenko, a Soviet scholar of international law, gave a concise definition of an
unequal treaty as one "containing both coercion and disproportionate rights and
obligations". See Stuart T. Malawer, "Imposed Treaties and International
Law", in Californian Western InternationalLegalJoumal, Vol. 7, 1977, p. 97.
525. Gong, supra, note 54, p. 67.
526. See B. V. A. Rling, International Law in an Expanded World, Amster-
dam, 1960, pp. 48 and 74; S. Sinha, "Perspective of New Independent States on
the Binding Quality of International Law", in International and Comparative
Law Quarterly, Vol. 14, 1965, pp. 123-124; and Eggon Schwelb, "Some Aspects
of International Jus Cogens as Formulated by the International Law Commis-
sion", in AJIL, Vol. 61, 1967, p. 966.
This represents the general opinion of the Afro-Asian jurists, in-

cluding the Chinese.
The Vienna Convention on the Law of Treaties of 1969 has no
specific provision on unequal treaties. In the Conference on the
Law of Treaties, the problem of unequal treaties has been brought
out. It has been suggested that :
"All unequal treaties obtained by pressure and force, or dis-
regarding the principle of sovereign equality of States, or
containing provisions contrary to principles of international
law, such as the right of all peoples to self-determination, or
non-intervention, should be illegal and void527."
The Conference declined to incorporate the concept of unequal
treaties in the provisions of the Convention on the Law of Trea-
ties 528. Two provisions of the Convention have, however, impliedly
recognized the concept. Article 52 declares a treaty as void if it is
concluded under the coercion of a State by the threat or use of
force and thus includes unequal treaties concluded under the threat
or use of force ; and Article 53 declares that : "A treaty is void if, at
the time of its conclusion, it conflicts with a peremptory norm of
general international law." As to the second provision, it may be said
that there is a growing consensus that the principle of sovereign
equality of States embodied in the United Nations Charter has
developed into a peremptory norm of international law and all agree
that the unequal treaties are characterized by a deviation from
that principle. One has to agree with the opinion that all treaties
which eventually fall within Article 52 of the Convention are, prima
facie, unequal treaties and some of the treaties falling within the
application of Article 53 can be considered as unequal treaties529.
527. Quoted in Detter, supra, note 406, p. 1083. It has been pointed out that
"the principle of sovereign equality of States, which was at the basis of modern
international law, involved a new approach to the problem of unequal treaties
obtained by coercion and in violation of jus cogens rules of international law".
See Chen, supra, note 519, p. 31.
528. Sir Humphrey Waldock stated in the United Nations International Law
Commission that :
"While accepting the view that some forms of 'unequal treaties' brought
about by coercion of the State must be regarded as lacking essential vali-
dity, the Special Rapporteur feels that it would be unsafe in the present
state of international law to extend the notion of 'coercion' beyond the
illegal use or threat of force." (Yearbook of the International Law Commis-
sion, 1963, Vol. II, p. 52.)
529. See Nozari, supra, note 519, p. 121 ; Chen, supra, note 519, pp. 248-249.
338 Wang Tieya
Before the founding of the PRC, the Chinese People's Political

Consultative Conference passed the Common Programme, which
had the function of being a provisional constitution, and provided
in Article 3 that "the Chinese People's Republic of China must
eliminate all prerogatives of imperialist countries in China". And,
in Article 55, it provided that :
the Kuomintang governments and, depending on their con-
tents, recognize, annul, revise or reconclude them530."
Though the term "unequal treaties" was not mentioned, both pro-
visions were apparently directed to the unequal treaties concluded
before the founding of the PRC. The "prerogatives of imperialist
countries in China" were based mainly on the unequal treaties
which the imperialist countries concluded with China. Treaties
which had to be annulled or reconcluded were apparently those of
unequal nature. Article 55 represented the attitude of the PRC
toward the past treaties which China had concluded. It concerned
principally with those concluded by Kuomintang Government, but
in practice, problems which had to be solved after the founding of
the PRC involved the unequal treaties concluded prior to the estab-
lishment of the Kuomintang Government.
In the practice of the PRC, no definition of unequal treaties has
ever been made. On some occasions, unequal treaties were men-
tioned by name to illustrate which treaties were unequal in nature.
Here is a passage in an editorial in the People's Daily, the organ of
the Chinese Communist Party, 8 March 1963, commenting on the
Statement of the United States Communist Party :
"In the hundred years or so prior to the victory of the Chi-
nese revolution, the imperialist and colonial powers the
United States, Britain, France, Czarist Russia, Germany,
Japan, Italy, Austria, Belgium, the Netherlands, Spain and
Portugal carried out unbridled aggression against China.
They compelled the governments of old China to sign a large
number of unequal treaties : the Treaty of Nanjing of 1842,
the Treaty of Aigun of 1858, the Treaty of Tianjin of 1858, the

Treaty of Beijing of 1860, the Treaty of 1881, the Protocol of

Lisbon of 1887, the Treaty of Shimononeseki of 1895, the
Convention for the Extension of Hong Kong of 1898, the
Protocol of 1901, etc. By virtue of those unequal treaties, they
annexed Chinese territory in the north, south, east and west
and held lease territories on the sea-board and in the hinter-
land of China. Some seized Taiwan and the Penghu Islands,
others occupied Hong Kong and forcibly leased Kowloon,
still others put Macao under perpetual occupation, and so
forth53'."
The list of treaties mentioned is of course far from exhaustive, but
it gives the examples of unequal treaties which were imposed upon
China by foreign powers in grave violation of the Chinese territo-
rial sovereignty and integrity. They were particularly mentioned
because the territorial problems based on them were left over from
the past and remained to be solved.
Practical steps have been taken to eliminate all the prerogatives
of foreign powers in pursuance of the relevant provision of the
Common Programme during the first few years after the founding
of the PRC. An incident occurred when the Beijing Municipal
Military Control Commission of the Chinese People's Liberation
Army proclaimed on 6 January 1950 to requisition the military
barracks and other installations of the United States in Beijing532.
The United States characterized the action as a violation of Article
VII of the Protocol of 1901 and Article II of the Treaty between
the United States and China of 1943533. The proclamation of the
Beijing Municipal Military Control Commission took the position
that because certain foreign countries in the past, utilizing so-called
"right of stationing troops of unequal treaties, have occupied land
in the Beijing municipality and constructed military barracks" and
"because unequal treaties have now been abolished, this type of
real property naturally shall be recovered. Therefore, at present,
because of military exigencies, this type of military barracks and
other installations will first be requisitioned"534. This position was
531. People's Daily, editorial (in Chinese), 8 March 1963.

532. See Contemporary Chinese Diplomacy, Beijing, 1987, pp. 18-19, and
Jerome Alan Cohen and Hungdah Chi, People's China and International Law,
Princeton, 1974, Vol. II, pp. 1049-1052.
533. See Cohen and Chi, ibid, p. 1050.
534. Ibid, p. 1049.
340 Wang Tieya
vigorously supported by the Comment of the New China News

Agency, published on 18 January which asserted that, as the com-
mon Programme "has already stipulated that all imperialist prero-
gatives and all unequal treaties are to be abolished, regardless of
whether they are long-standing treaty rights or were reaffirmed in
1943", the Beijing Municipal Military Control Commission "has
the obligation to carry out the Common Programme, but has abso-
lutely no obligation to carry out these unequal treaties"535. Thus, in
the process of eliminating the imperialist prerogatives, the unequal
treaties upon which the prerogatives were based were abrogated
accordingly.
The provision of the Common Programme to the effect that the
PRC would "recognize, annul, revise or reconclude" the past
treaties did not give indication as to what would be the validity of
unequal treaties : whether they were null and void ab initio or they
were voidable, that is, to be annulled, yet effective until annulment.
The practice of the PRC confirms the theory that unequal treaties
are by nature null and void. As a matter of fact, most of the un-
equal treaties were considered as null and void by the PRC without
giving rise to opposition of other States except in a very few in-
stances 536. It is reasonable that, if according to the Vienna Conven-
tion on the Law of Treaties, a treaty concluded under the coercion
of a State by the threat or use of force or a treaty conflicting with a
peremptory norm of general international law is void, then, an
unequal treaty which is imposed by force in violation of the fun-
damental principles of international law will naturally be void.
There are some special cases in the practice of the PRC which
are alleged to be exceptional to the rule upheld by the PRC that
unequal treaties are null and void ab initio.
1. In relation to the question of the boundary lines between
China and Burma, Premier and Foreign Minister Zhou En-lai
535. Cohen and Chi, op. cit., pp. 1055-1057 ; see also Contemporary Chinese
Diplomacy, p. 19.
536. See Chen, supra, note 128, p. 29. Welsey-Smith stated that:
"Since 1949 some prior treaties have been recognized and confirmed.
Some bilateral treaties have been cancelled after the friendly negotiation of
substitutes. Others have been unilaterally repudiated, although no pre-
existing treaty affecting territory has been unequivocably abrogated
without the agreement of the other party and the Government of the
People's Republic of China has consistently recognized the territorial status
quo established by unequal treaties pending negotiations for a fair and just
settlement of the issue." (Supra, note 429, p. 185.)
made a report to the National People's Congress on 9 July 1957, in

which he said that :
"It was the opinion of our government that on the question
of boundary lines, demands made on the basis of formal treat-
ies should be respected according to general international prac-
tice, but this by no means excluded the seeking by two friendly
countries of a settlement fair and reasonable for both sides
through peaceful negotiation between their governments537."
The negotiations led to the conclusion of first an agreement and
then a definitive treaty. The Treaty on Boundaries between the
PRC and the Union of Burma signed on 1 October 1960, gives an
over-all settlement of the Sino-Burmese boundary question. In the
Treaty, no mention was made of past treaties which were imposed
upon China by Great Britain, the only exception being the notes
exchanged between the Chinese and the British Governments on 8
June 1941. According to the Treaty, certain portions of the boun-
dary are delimited "as defined" by the exchange of notes. In 1956,
the Burmese Premier U Nu, found that, though clearly denouncing
all past unequal boundary treaties with Britain, China was wilhng
to negotiate the issue on border lines that the British had proposed,
and he explanied that : "it was the origin of those boundaries in
unequal treaties imposed by Britain that was unacceptable to
China, not the alignments the British had proposed538."
2. In the note of the Ministry of Foreign Affairs of the PRC to
the Indian Embassy in China, 26 December 1959, it was stated that
the Simla Convention of 1914 which provided for the so-called
MacMahon Line "is void of legal validity". The note then stated
that:
"Many dirty unequal treaties signed by the past Chinese
Governments under imperialist oppression have already been
proclaimed null and void. The Chinese Government feels per-
plexed why the Government of India, which has likewise won
independence from imperialist oppression, should insist that
the Government of its friend China recognized an unequal
treaty which the Chinese has not even signed539."

538. Quoted in Chen, supra, note 519, p. 200.
539. Collection of Documents, Vol. 6, 1959, pp. 128-129.
342 Wang Tieya
The attitude of the PRC is clearly enunciated in the following

statement :
"The Sino-Indian boundary question is a complicated issue
left over from the past. China has always adopted a positive
attitude in seeking a settlement of the Sino-Indian boundary
question. We maintained that the two sides should work for a
just, reasonable and comprehensive settlement of the boun-
dary question through friendly discussions in a spirit of
mutual understanding and accommodation on the basis of the
Five Principles of Peaceful Coexistence540."
3. In the boundary dispute between the PRC and the USSR the
unequal treaties concluded by old China and Tsarist Russia were
involved. The Statement of the Government of the PRC issued on
24 May 1969 said that: "The treaties relating to the present Sino-
Soviet boundary are all unequal treaties imposed on China by
Tsarist Russian imperialism", including the Treaty of Aigun of 1858,
the Convention of Beijing of 1860, the Tahcheng Protocol of 1864
and the Treaty of Hi of 1881. As to the attitude of the PRC, it
declared that :
"The Communist Party of China and the Chinese Govern-
ment have always held that boundary questions should be
settled by negotiations through diplomatic channels and that,
pending a settlement, the status of boundary should be main-
tained and conflict averted541."
As a matter of fact, during the negotiations on the boundary taking
place in 1964, the consistent Chinese position was that the ine-
quality of the treaties concerned signed by the Qing Court and the
Tsarist Government should be confirmed, but the treaties should be
the basis of negotiations for a comprehensive settlement of the boun-
dary problem of the two countries and there would be no demand
for the restoration of the territory seized by Russia from China542.
540. Statement made by the spokesman of the Ministry of Foreign Affairs of

the PRC, 20 November 1985 (in Chinese), People's Daily, 20 November 1985.
541. People's Daily (in Chinese), 24 May 1969.
542. In a letter from the Chinese Communist Party to the Soviet Communist
Party, dated 29 February 1964, it was stated that: "although the old treaties
relating to the Sino-Russian boundary are unequal treaties, the Chinese
Government is nevertheless willing to respect them and take them as the basis
for a reasonable settlement of the Sino-Soviet boundary". People's Daily, 29
February 1964.
4. In the cases of Hong Kong and Macao, Huang Hua, the Chi-
nese representative accredited to the United Nations, sent a letter
on 10 March 1972 to the Chairman of the Special Committee on
Colonialism of the General Assembly of the United Nations, in
which he indicated that "the questions of Hong Kong and Macao
belong to the category of questions resulting from the series of
unequal treaties left over by history, treaties which the imperialists
imposed on China" and that "With regard to the questions of
Hong Kong and Macao, the Chinese Government has consistently
held that they should be settled in an appropriate way when condi-
tions are ripe"543. In the report of Foreign Minister Wu Xue Qian
on the Sino-British agreement on the Hong Kong Question to the
Standing Committee of the National People's Congress on 6
November 1984, there was a passage as follows :
"The above-mentioned treaties [i.e., The Treaty of Nanjing
of 1842, the Treaty of Beijing of 1850 and the Convention for
the Extension of Hong Kong of 1898] were all the product of
armed aggression. The Chinese people has never recognized
these unequal treaties. The successive Chinese Governments
have never recognized the above-mentioned unequal treaties.
After the founding of the PRC, our Government has re-
peatedly expounded the position of our country toward the
problem of Hong Kong, that is, Hong Kong is Chinese terri-
tory and China does not recognize the three unequal treaties im-
posed on China by the imperialists. In regard to this question
which was left over by history, the Chinese Government
consistently held that it should be peacefully settled through
negotiation on an appropriate occasion and, pending settle-
ment, the status quo should be temporarily maintained544."
As a result of negotiations, the questions of Hong Kong and
Macao were settled successively by the Sino-British Joint Declara-
tion of the Question of Hong Kong of 26 September 1984 and the
Sino-Portuguese Joint Declaration on the Question of Macao of 13
April 1987. Both Joint Declarations do not mention the past un-
equal treaties imposed on China. They explicitly provide that Hong
543. United Nations Monthly Chronicle, Vol. 9, No. 7, July 1972; quoted in
Cohen and Chi, supra, note 532, Vol. 1, p. 384.
544. Selected Documents on the Question of Hong Kong, p. 17.
344 Wang Tieya
Kong and Macao are parts of Chinese territory and their sover-
eignty will be restored to China and China will resume the exercise
of its sovereignty at the dates set by the Joint Declarations, that is,
in 1997 and 1999 respectively.
The brief survey of the practice of the PRC relating to the un-
equal treaties shows that: (1) the PRC upholds the concept of un-
equal treaties and sees in it two distinct features : they are imposed
by the use or threat of force and they are in violation of the princi-
ples of State sovereignty and equality ; and (2) the PRC considers
that unequal treaties are null and void ab initio, but in the special
cases involving territorial questions, status quo will be preserved
until the settlement in an appropriate way through peaceful
negotiations.
4. The Rule Rebus Sic Stantibus

Closely related to the rule pacta sunt servanda is the rule rebus
sic stantibus. The latter rule has sometimes been condemned as "a
maxim of politics", not a rule of law M5. Though most of the inter-
national lawyers agree that the rule does exist in international law
and it is not antithetical but complementary to the rule pacta sunt
servanda*6, there has been long controversy about the juridical
basis of rebus sic stantibus, its scope of application and its legal
effect547.
The problem is now settled by the Vienna Convention on the
Law of Treaties of 196954S, which provides (Article 62, paragraph
1) as follows :
"A fundamental change of circumstances which has occur-
red with regard to those existing at the conclusion of a treaty,
and which was not foreseen by the parties, may not be invoked
545. Lauterpacht, supra, note 427, p. 169. The doctrine has often been des-
cribed as the "enfant terrible" of international law, see Akos Toth, "The Doc-
trine of Rebus Sic Stantibus in International Law", Juridical Review, 1974,
p. 56, and Nozari, supra, note 519, p. 134.
546. Toth, ibid., pp. 78-154 and 156-166.
547. J. P. Burlington, supra, note 461, p. 154. See also Chesney Hill, The
Doctrine of Rebus Sic Stantibus in International Law, Missouri, 1934, pp. 7-16.
548. Athanassios Vamvoukos, Termination of Treaties in International Law :
The Doctrine of Rebus Sic Stantibus and Desuetude, Oxford, 1985, pp. 150-
151. See also Oliver J. Lissitzyn, "Treaties and Changed Circumstances", AJIL,
Vol. 61, 1967, p. 895.
as a ground for terminating or withdrawing from the treaty,

unless :
(a) the existence of those circumstances constitutes an essen-
tial basis of the consent of the parties to be bound by the
treaty ; and
(b) the effect of the change is radically to transform the
extent of obligations still to be performed under the
treaty."
It can thus be seen that (1) rebus sic stantibus is not an implied
term or clause in a treaty, as advocated by some international
lawyers549, but it is an objective rule of international law, not
dependent on any implied term or clause of the treaty 55 ; (2) the
effect of rebus sic stantibus is to furnish a ground for terminating
or withdrawing from the treaty, distinguished from a ground of
invalidity of a treaty ; and (3) "the fundamental changes of circum-
stance" must be those existing at the time of the conclusion of a
treaty and constituted an essential basis of the consent of the par-
ties to be bound by the treaty while the change must be one which
was not foreseen by the parties and the effect of which is radically to
transform the extent of obligation still to be performed under the
treaty551. The rule is established and specific conditions for its in-
vocation are stipulated.
The provisions of Article 62 of the Vienna Convention were
confirmed by the International Court of Justice. It pronounced in
549. For instance, Hill, McNair and Brierly, see Lissitzyn, ibid., pp. 898-900.
550. The International Law Commission rejected the theory of "implied
term" or "tacit condition" as an undesirable fiction, see Lissitzyn, ibid., p. 913.
In the American Law Institute, supra, note 332, Vol. 1, p. 219, it was clearly
stated that "'rebus sic stantibus'" is not a principle of interpretation, as an
implied clause (clausula) in every agreement, but is rather a substantive principle
permitting escape from obligations without regard to the intention of the
parties".
551. The International Law Commission said in its commentary to the article
that the definition given had a series of conditions :
"(1) the change must be of circumstances existing at the time of the
conclusion of the treaty ; (2) that change must be a fundamental one ; (3) it
must also be one not foreseen by the parties ; (4) the existence of those
circumstances must have constituted an essential basis of the consent of the
parties to be bound by the treaty ; and (5) the effect of the change must be
radically to transform the scope of obligations still to be performed under
the treaty."
See E. Schwelb, "Fundamental Change of Circumstances", Zeitschrift fr Aus-
lndisches ffentliches Recht und Vlkerrecht, Vol. 29, 1969, p. 45.
346 Wang Tieya
its Judgment in the Fisheries Jurisdiction case (Jurisdiction), 1973,

that:
"International law admits that a fundamental change in the
circumstances which determines the parties to accept a treaty,
if it has resulted in a radical transformation of the extent of
the obligations imposed by it, may, under certain conditions,
afford the party affected a ground for invoking the termina-
tion or suspension of the treaty. This principle, and the condi-
tions and exceptions to which it is subject, have been em-
bodied in Article 62 of the Vienna Convention on the Law
of Treaties, which may in many respects be considered as a co-
dification of existing customary law on the subject of the ter-
mination of a treaty relationship on account of change of
circumstances552."
The provisions of the Vienna Convention are not binding on the
States which are not the contracting parties to the Convention, as
in the case of the PRC but the provisions will be respected so far as
they represent the rules of customary international law.
It is well known that, in the 1920s, in China's negotiations with
certain foreign powers for treaty revision, the rule rebus sic stanti-
bus has been invoked. The notable case is that with Belgium553. On
16 April 1926, the Chinese government of that time sent a note to
the Belgian minister at Beijing demanding a revision of the Sino-
Belgian Treaty of Amity, Commerce and Navigation of 2 Novem-
ber 1865 and expressing the intention of terminating it. The note
stated that :
"The aforesaid Treaty which still regulates the commercial
relations between the two countries, was concluded as long as
60 years ago. During the long period which has elapsed since
its conclusion, so many momentous political and commercial
changes have taken place in both countries, that, taking all
circumstances into consideration, it is not only desirable, but
also essential to the mutual interests of both parties con-
552. International Court of Justice Reports 1973, para. 36.

553. See Tseng Yu-hao, The Termination of Unequal Treaties in Inter-
national Law, Shanghai, 1931, pp. 80-104; Hill, supra, note 547, pp. 32-36;
Supplement to the AJIL, Vol. 29, 1935, Law of Treaties, pp. 1114-1117; and
G. Haraszti, "Treaties and the Fundamental Change of Circumstances", Collec-
ted Courses, Vol. 146, 1975-1, pp. 25-26.
cerned, to have the said Treaty revised and replaced by a new

one to be mutually agreed upon."
It went on to give a general view that :
"As conditions and circumstances in human society are
constantly changing, it is manifestly impossible to have any
treaty which can indefinitely remain good for all time without
modification. International agreements, particularly treaties of
commerce and navigation, are as a matter of international
practice, always subject to more or less frequent revision, in
accordance with the nature and circumstances of each case,
even in the absence of any provision to the effect, so that
necessary readjustments may be effected from time to time, to
the best advantage of the contracting parties554."
After lengthy negotiations, no agreement could be reached between
the parties. On 6 November 1926, the Chinese Government issued a
declaration to terminate the Treaty of 1865555. And in a note of 16
November it asserted that :
"This Declaration is in conformity with the spirit of Article
19 of the Covenant of the League of Nations which recog-
nized the fundamental principle of rebus sic stantibus governing
the international treaties which have become inapplicable556."
The Chinese Government did not, however, appeal to the League
of Nations557. In the same note, it rejected the Belgian proposal of
submitting the dispute to the Permanent Court of International
554. For the English text of the note, see Chinese Social and Political
Sciences Review, Vol. 11, No. 1, 1927, Public Documents Supplement, pp. 9-12.
555. See Xi Wuji, "On the Abolition of the Sino-Belgian Unequal Treaty" (in
Chinese), in Studies on Modern History, Vol. 2, pp. 190-191.
556. For the English text of the note, see Chinese Social and Political Science
Review, Vol. 11, No. 1,1927, Public Documents Supplement, pp. 40-41.
557. In 1929, China submitted a draft to the Assembly of the League where-
upon the Assembly adopted a Resolution which declared the meaning of Article
19 of the Covenant to be that :
"a member of the League may on its own responsibility . . . place on the
agenda of the Assembly the question whether the Assembly should give
advice as contemplated by Article 19 regarding its reconsideration of any
treaty or treaties which such members consider to have become unappli-
cable or the consideration of international conditions the continuance of
which might, in its opinion, endanger the peace of the world".
See Toth, supra, note 545, pp. 159-160.
348 Wang Tieya
Justice, on the ground that the dispute "is political in character and
no nation can consent to the basic principle of equality between
States being made the subject of a judicial inquiry"558. Finally, the
dispute was settled by the negotiation of a new treaty, the Treaty of
Amity and Commerce of 22 November 1928, in which a con-
ditional abrogation of Belgian rights of extraterritoriality was pro-
vided559.
In the negotiations in the 1920s, the Chinese Government relied
upon the rule rebus sic stantibus as a part of her argument for
revision or termination of unequal treaties, though it did not well
define the rule. Belgium recognized the principle that the parties to
a treaty had the obligation to negotiate for the revision of the
treaty "when the essential circumstances in view of which the treaty
has been concluded are modified" but it denied the right of China
to terminate the treaty by unilateral action 56. Some other powers
took a similar position561. The only power which contested "the prin-
ciple of changed circumstances" was Japan. It attacked the princi-
ple as "having no foundation in international law or usage as a rule
for revision or lapse of a treaty" and considered that the admission
of such a principle would "render almost all treaties liable to repu-
diation at the pleasure of either party, thus shaking the very foun-
dation of international law"562.
In the practice of the PRC, the confirmation of the rule rebus sic
stantibus may be said to have been implied in Article 55 of the
Common Programme which provided that
the Kuomintang Government with foreign governments and,
558. Belgium presented a memorial, dated 3 January 1927, to the Permanent

Court of International Justice but China refused to join with Belgium. Belgium
withdrew the case from the Court before a judgment was rendered as the dispute
had been settled by the negotiation of a new treaty. See Hill, supra, note 547,
p. 34.
559. For the Chinese text, see Wang, supra, note 80, Vol. 3, pp. 642-646; for
the French and English texts, see The Treaties of the Seventeenth Year of the
Republic, pp. 43-49.
560. See Belgian memorial to the Permanent Court of International Justice, 3
January 1927, Permanent Court of International Justice, Series E, No. 4, p. 151.
561. Hill, supra, note 547, pp. 35-36.
562. See Chinese Social and Political Science Review, Public Documents
Supplement, Vol. 13, 1929, pp. 59-61.
depending on their contents, recognize, annul, revise or re-

conclude them."
A Chinese international lawyer, after mentioning this article, and
pointing out that "the observance of unequal treaties is not an obli-
gation under modern international law", commented that :
"Furthermore, as the PRC has a class character radically
different from that of the old China, the vital condition exis-
ting at the time of the conclusion had ceased to exist. These
treaties had become void by the simple operation of the prin-
ciple rebus sic stantibus563. "
The principle is thus connected with the social revolution which
transformed the old China into a new one and provides one of the
bases of Article 55.
There were, however, rare occasions that the PRC applied the
rule rebus sic stantibus. Two cases may be illustrative.
1. On 14 August 1945, the Treaty of Friendship and Alliance
was concluded between China and the Soviet Union. At the same
date, three agreements were signed on the Chinese Changchun
Railway, Daren and Port Arthur, providing respectively for joint
management of the Railway, the status of the free port of Dairen
and the joint use of Port Arthur as a naval base564. Shortly after
the founding of the PRC, on 14 February 1950, the Sino-Soviet
Treaty of Friendship, Alliance and Mutual Assistance was con-
cluded to displace the Treaty of 1945 s65. On the same date, the
Agreement concerning the Chinese Changchun Railway, Port
Arthur and Dairen was signed566. The Agreement provides for the
restoration of the Changchun Railway to the PRC, the withdrawal
of Soviet troops from Port Arthur and the exclusive management
of Dairen by the Chinese Government. The Preamble of the

564. For the Chinese text, see Wang, supra, note 80, Vol. 3, pp. 1327-1340;
for the Russian text, see United Nations Treaty Series, Vol. 10, II, pp. 319-331.
565. For the Chinese text, see Treaty Series, Vol. 1, 1949-1951, pp. 1-3, for
the Russian text, see Collection of Existing Treaties, Agreements and Conven-
tions Concluded by the USSR with Foreign States (in Russian), Moscow, Vol.
14, pp. 15-22.
566. For the Chinese text, see Treaty Series, Vol. 1, 1949-1950, pp. 3-5; for
the Russian text, see Collection of Existing Treaties, supra, note 565, pp. 23-
30.
350 Wang Tieya
Agreement of 1950 states the change of circumstances as the basis

of its conclusion and is worth quoting in extenso :
of China and the Presidium of the Supreme Soviet of the
Union of Soviet Socialist Republics note that since 1945 the
following radical changes have taken place in the Far East :
imperialist Japan has suffered defeat; the reactionary Kuo-
mintang Government has been overthrown; China has
become a people's democratic republic; and there has been
established in China a new People's Government which has
united all China, applied a policy of friendship and co-
operation with the Soviet Union, and proved its ability to
uphold the State independence and territorial integrity of
China and national honour and dignity of the Chinese People.
The Central People's Government of the People's Republic
of China and the Presidium of the Supreme Soviet of the
Union of Soviet Socialist Republics consider that, because of
this new situation, a new approach to the question of the
Chinese Changchun Railway, Port Arthur, and Dairen is
possible.
In accordance with these new circumstances, the Central
People's Government of the People's Republic of China and
the Presidium of the Supreme Soviet of the Union of Soviet
Socialist Republics have decided to conclude this Agreement
concerning the Chinese Changchun Railway, Port Arthur and
Dairen567."
According to Article 6 of the Treaty of 14 February 1950, it was
due to expire on 11 April 1980, but it would extend provided that
either party had not expressed the intention of abrogation before
the expiration. On 4 April 1979, the Standing Committee of the
National People's Congress of the PRC passed a resolution de-
ciding not to extend the treaty beyond expiration, the reason being
that great changes had taken place in the international situation
and that the treaty had long ceased to exist except in name owing
to violations for which the Chinese side was not responsible56B. This
is a case in which the changed circumstances furnished one of the
567. Treaty Series, Vol. 1, 1949-1950, p. 3.

568. People's Daily, 4 April 1979 (in Chinese).
arguments for the abrogation of the treaty according to the provi-

sions of the treaty concerned.
2. During the negotiations on the boundary question between
China and Burma, Premier and Foreign Minister Zhou En-lai
made, on 9 July 1957, a report to the National People's Con-
gress569. He stressed the necessity of concluding a new boundary
treaty with Burma on the basis of the Five Principles of Peaceful
Coexistence and, after pointing out the complicated historical
background of the boundary question, he stated that :
"At the same time we must bear in mind the fundamental
changes of historic importance that have taken place in China
and Burma respectively, that is, China has cast away its semi-
colonial status and Burma its colonial status and both have
become independent and mutually friendly countries."
He emphasized that: "In dealing with this boundary question
attention must be paid to these historical changes570." On 28
January 1960, the Agreement concerning the Question of Burma
between China and Burma was signed5", and, then, nearly ten
months later, on 1 October 1960, a formal Boundary Treaty was
concluded572. This Agreement and Treaty supersede the past treaties
and agreements concerning the boundary between China and Burma.
The PRC has had no occasion of expressly invoking the rule
rebus sic stantibus. The above two instances show that the change
of circumstances has been taken as justification of revision of a
treaty or conclusion of a new treaty to substitute an old one. The
cautious attitude of the PRC would mean that the rebus sic stanti-
bus rule as complementary to the rule acta sunt servanda is to be
applied only in exceptional cases.
It is now generally agreed that the rule rebus sic stantibus should
have a place in international law, as testified by the provisions of
the Vienna Convention on the Law of Treaties of 1969. It is com-
plementary to the rule pacta sunt servanda. It is described as a
569. Collection of Documents, Vol. 4, 1956-1957, pp. 341-347.

570. Ibid., p. 347.
571. For the Chinese text, see Treaty Series, Vol. 9, 1960, pp. 65-68; for the
English text, see British and Foreign State Papers, Vol. 164, pp. 651-654.
572. For the Chinese text, see Treaty Series, Vol. 9, 1960, pp. 68-77; for the
English text, see British and Foreign State Papers, Vol. 164, pp. 654-657.
573. See J. B. Whitton, supra, note 515, p. 260; Schwelb, supra, note 551,
pp. 46-47.
352 Wang Tieya
"safety valve" in the law of treaties574. And it has been frequently

resorted to by newly independent States575. It is, however, also
agreed that the rule should be invoked only in exceptional cases
and with caution576. It should not be used merely to excuse the
breach of a treaty. As pointed out by Brierly that : "Every system of
law has to steer a course between the two dangers of impairing the
obligations of good faith by interfering with contractual engage-
ments, and of enforcing oppressive or obsolete contracts577." Pro-
perly used, the rule rebus sic stantibus will not be a danger to the
rule pacta sunt servanda. On the contrary, they can supplement
each other and in combination they will guarantee the sanctity of
treaties57S.
574. See Lissitzyn, supra, note 548, p. 913.

575. See Sinha, supra, note 526, p. 124 and Abi-Saab, supra, note 3, p. 108.
576. See Schwelb, supra, note 551, pp. 46-47.
577. Brierly, supra, note 348, p. 332.
578. See Gyorgy Haraszti, "Treaties and the Fundamental Change of Cir-
cumstances", Collected Courses, Vol. 146, 1975-III, p. 60.
353
CONCLUSION
The world has changed radically since the Second World War.
One of the significant changes is that the number of States in-
creased enormously579. With the appearance of newly independent
States, international society has expanded and has become univer-
sal. While, formerly, it was dominated by a small group of western
countries, it comprises now mostly States which got rid of their
colonial rule and attained independent status580. The change has
necessarily .impacted on international law. The restructuring of
international society leads to the transformation of international
law, which ceases to be a European public law and has become a
law of universal application.
China is a country which is both old and new. It is old, because
it has a long history of thousands of years with old cultural tradi-
tions. It is new because it has divested itself of the shackles of un-
equal treaties and put an end to its semi-colonial status to become
really an independent State equal to others only after the Second
World War. Both have influenced its dealings with its foreign re-
lationships and its attitude towards international law.
The history of international law in China is rather peculiar.
More than 2,500 years before, in ancient China, during the periods
of Spring and Autumn and the Warring States, some principles
and rules emerged in the relations among the feudal principalities
under the Zhou dynasty, which may be said to be analogous to
those of modern international law. They did not develop further,
however. The twilight of their existence was extinguished when the
whole country was reunified under the Emperor the First Em-
peror of Qin. Henceforth, the Chinese world order was established on
the basis of Confucian culture until the middle of the nineteenth
century when the order was broken by western forces. Within the
order, the relations of China, the Middle Kingdom, and its neigh-
579. Wang Tieya, "The Present Trends in International Law" (in Chinese), in
Journal of Peking University Social Sciences, Vol. 78, 1980, pp. 18-20; a
German translation, "Die Gegenwartigen Entwicklungstendenzen des Volker-
recht", in Gerd Kaminski and Oskar Weggel (eds.), China und des Volkerrecht,
Hamburg, 1982, pp. 39-42.
580. See Rling, supra, note 526, p. 5.
354 Wang Tieya
bouring countries, the tributary states, admitted of no equality,

while, outside the order, contacts with far distant countries were
rare. For thousands of years, as there were no equal relations be-
tween States, international law was impossible.
Modern international law was formally introduced into China in
the 1860s. It was, however, accepted only half-heartedly by both
sides, the Chinese and the Foreign powers. International law did
not function while the basis of China's foreign state was unequal
treaties imposed by force. For nearly 100 years, the unequal treaty
system persisted. It took the place of the tribute system : inequality
of Chinese superiority was displaced by Western dominance. Again,
without equality, the way of developing international law in China
was blocked.
The history of the full application of international law in China
is therefore short. At the beginning, with its long historical and
cultural background, the Chinese were sceptical about the princi-
ples and rules of international law which Western countries claimed
to be universally applicable, including those which appeared to
furnish a justification of their oppression and exploitation upon
weaker countries. The Chinese would easily have shared the view of
a Chinese diplomat of the late nineteenth century that : "Interna-
tional law is . . . reasonable but unreliable. If there is right without
might, the right will not prevail581." However, the PRC was quick
to realize after its founding that, for the young republic, internatio-
nal law was both useful and necessary. It was useful because it
might be used to protect its rights and interests against foreign
encroachment and it was necessary because without it relations
among States were impossible. Just as stated by a former famous
Chinese scholar, the truth is "As all States stand side by side,
there cannot be no restraints, and, hence, there is public law"582. It
is now beyond doubt that the PRC has not only recognized the
existence of international law, but also adopted and applied the
principles and rules of international law in its conduct of foreign
relations583.
581. Cui Guoying, Diary of My Mission to the United States, Spain and
Peru, Vol. 2, Diary of 12 April 1891.
582. Liang Qichao, Collection of Essays (in Chinese), Vol. 2, pp. 62-63.
583. See R. Rndle Edwards, "The Attitude of the PRC Towards Internatio-
nal Law", in Papers on China, Cambridge, 1963, Vol. XVII, p. 235, and Hong-
dah Chi, "Communist China's Attitude toward International Law", in AJIL,
Vol. 60, 1966, p. 246.
The PRC considers itself a developing country, belonging to the

Third World. It shares similar views on international law with
other developing countries in many respects. Admittedly, there are
differences among the developing countries, historically and cul-
turally, politically and economically. These differences must have
their influence. But, the similarities of the developing countries are
most fundamental : their cultural traditions are distinct from those
of the Western world ; they have almost the same past of foreign
control and oppression and long struggles for their liberation and
independence ; and their level of economic development is low. All
these constitute the basis upon which they adopt their attitude
towards international law5M.
Doubts have sometimes been cast upon the possible acceptance
of international law by developing countries. It is true that some
principles and rules of international law have been criticized or
attacked and demands have been raised for their revision or aboli-
tion 585. The main attitude of the developing countries, however, as
illustrated by that of the PRC, is rather to adopt the international
law as a whole, to apply its principles and rules and promote its
development.
It is an undeniable fact that modern international law has its
origin in Europe and it is the product of Christian civilization586.
Later on, it has been expanded to cover all States of the world, old
and new. This change, especially that which occurred since the
Second World War, has been described by some writers as a
gloomy picture and was called a "crisis" of international law,
because, they asserted, the common cultural unity upon which the
law was originally founded "has been destroyed"587. This is indeed
an exaggeration and misapprehension. The change did not create
crisis, it is rather a challenge that international law has to adapt to
new circumstances, a challenge that international law has to meet
in order to make its own progress.
The present world, composed of so many States, is multicultural
584. See R. P. Anand, New States and International Law, New Delhi, 1971,
p. 4.
585. Ibid, pp. 53-65.
586. J. H. W. Verzijl, International Law in Historical Perspective, Vol. 1,
Leiden, 1968, p. 436.
587. See H. A. Smith, 77/e Crisis of the Law of Nations, London, 1947, and
J. Kunz, "La crise et les transformations du droit des gens", Recueil des cours,
vol. 88, 1955.
356 Wang Tieya
in nature. One has to agree with Arangio-Ruiz that "ideological,

political, economic, or social affinities among States are not a pre-
requisite of international law"588 and Jenks has rightly pointed out
that : "The concept that any one culture has a monopoly of legal
wisdom is no less an anachronism than the concept that any one
culture is the centre of the Universe"589. As the practice of the PRC
has shown, the differences of historical and cultural heritages, in
spite of having their impact, did not produce an unbridgable gap
between the Western and non-Western attitudes towards interna-
tional law. On the contrary, the differences, well accommodated,
can yield even more fruitful results. The goal is to establish an
effective universal international law. The process may be hard and
long. For the present, the task of international lawyers is to take
account of different histories and cultures of various countries and
to find out principles of law and justice which are common to all.
588. Arangio-Ruiz, "Friendly Relations Resolution", in Bernhardt (ed.),

supra, note 296, Vol. 9, p. 135.
589. Jenks, supra, note 354, p. 84.
357
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INTERNATIONAL LAW IN CHINA:

HISTORICAL AND CONTEMPORARY

Introductory remarks 203

Wang Tieya, born in Fuzhou, China, on 6 July 1913.

This is a special course on International Law in China, treating

The first part consists of two chapters, dealing separately with

INTERNATIONAL LAW IN ANCIENT CHINA

/. International Law in the Periods of Spring

other Middle East countries, which were similar to those of modern

Guifen had suggested an analogy between the period of Spring and

8. See Denis Twitchett and John K. Fairbank, The Cambridge History of

China under the Zhou Dynasty (1000-221 B.C.) was a feudalistic

14. Ibid., pp. 428-443.

gaged in many and varied diplomatic activities. They included diplo-

18. Walker, supra, note 12, p. 75.

2. Conferences. In the conducting of interstate activities, confer-

22. Walker, supra, note 12, p. 79.

not composed of sovereign States, it did not set up any organization

However, the most important sanction of treaties, it was commonly

2. The Chinese Traditional World Order

China had relations with its surrounding countries situated in the

prince and ministerx. The relations reflected the familial relations :

36. Fairbank, supra, note 33, p. 6.

sovereignties, nor was it one Empire only. It was composed of

in his article "Historical Notes on the Chinese World Order", in Fairbank,

parties concerned would be expected to maintain order and har-

44. Fairbank, supra, note 33, p. 6.

were exceptional cases. No evidence of consistent practices or

3. The Tribute System

It consisted of three separate kneelings, each kneeling accompanied

allowed to conduct profitable trade with the Middle Kingdom60.

70. Hsu, supra, note 31, pp. 13-14.

treatment ; they were graded in order by the frequency with which

75. Fairbank and Teng, supra, note 51, pp. 165-169.

INTERNATIONAL LAW IN MODERN CHINA

1. The Introduction of International Law into China

Some of them had even studied at the University of Corinbra

tional law was made in either official or unofficial sources during

China should be provided with proper knowledge of foreign coun-

90. Wang, supra, note 85, p. 59.

attempt to undertake the work of translating the whole book.

"clearly understand it unless it is explained in person" '2. Martin's

"Nowadays, there are many nations outside China. If there

102. Martin, supra, note 96, p. 234.

ocean", meaning territorial waters. In its memorial to the court, it

book "can serve as a useful aid to China in planning border

121. Martin, supra, note 96, p. 234.

that he treated it in the first essay of his book on reform. Chen

2. The Imposition of Unequal Treaties

126. Ibid., p. 197.

threat of an assault on the city of Nanjing by British troops. It was

132. Fairbank, supra, note 54, pp. 257-258.

mentary Treaty provided for a tariff schedule, granted extraterri-

240 Wang Tieya

treaties legalized the opium trade, allowed foreign merchant ships

141. According to Article XXVI of the Sino-British Treaty of 1858, a tariff

As mentioned above, the loss of China's suzerainty over Liuchiu

156. Ibid., p. 329.

Qing Court was in no position to meet its financial obligations

165. The Contract of Loan with a Franco-Russian consortium was signed in

leges previously acquired by Russia were transferred to Japan174.

military occupation of Shangdong, the Twenty-one Demands were

180. See Liu, supra, note 144, pp. 375-389.

Only a few equal treaties were concluded during the whole