Chapter Six. International law as world order in early 20th century China

Reviewed by: International Law as World Order in Late Imperial China: Translation, Reception and Discourse, 1847-1911 Thomas Buoye (bio) Rune Svarverud . International Law as World Order in Late Imperial China: Translation, Reception and Discourse, 1847-1911. Leiden: Brill, 2007. x, 322 pp. Hardcover $99.00, ISBN 978-90-04-16019-4. Rune Svarverud's International Law as World Order in Late Imperial China: Translation, Reception and Discourse, 1847-1911 is an impressive work of scholarship that deserves a serious reading from scholars of legal as well as intellectual history of late imperial China. Svarverud wants to show "how international law was translated, interpreted and received in China as a theoretical framework for conducting international relations, and how a Chinese discourse on questions related to China's role and identity in international relations developed from and within the theories of international law" (p. 3). At the outset, Svarverud clearly notes that his work is not diplomatic history but intellectual history. The author is interested in the discourse of international law in China and how this discourse changed from the latter half of the nineteenth century to the end of the Qing. Deftly sidestepping the simple dichotomy of Western international law and traditional Chinese views of inter-state relations, Svarverud acknowledges the complexity of traditional diplomacy and posits four competing perspectives on international relations in the late Qing. Adopting a relatively compact historical narrative, Svarverud takes the Lin Zexu's pre-Opium War efforts to translate works as his starting point and the Sino-Japanese War as the critical turning point in the Chinese discourse on international law. According to the author, the intellectual adaptation of international law as a theory, which began in the wake of Sino-Japanese War, was consolidated during the Russo-Japanese War. Chapter 1 addresses linguistic issues, defines the intellectual pedigree, and frames the meta-narrative of the work. Wisely acknowledging that a number of studies "reveal that the Chinese court conducted their foreign relations on a much more flexible basis with larger fluctuations over time" (p. 12), the author delineates two traditional frameworks—the tribute system and an analogous system of private trading—and two modern frameworks—social Darwinism and international law—for interstate relations. Aside from a gentle remonstrance of John Fairbank's claim that "the great traditions of the Chinese world order" made adjustments to Western international law difficult, Svarverud's work broadens the field of inquiry rather than toppling existing interpretations. Chapter 2 primarily provides a succinct overview of the history of international law in the West. While the chapter offers nothing new or controversial, it will likely be a welcome tutorial for Sinocentric scholars. The tension between theory and practice, which is always just below the surface in this work, comes to the fore in this chapter. By insisting on focusing on the "processes of intellectual adaptation of international law as a theory in the Chinese discourse" (p. 27), the author does not feel compelled to address lessons that Chinese intellectuals may [End Page 163] have learned from diplomatic confrontations that occurred prior to the translation of major works on international law in the nineteenth century. Comparing Chinese translations of legal terminology in three major Western works on international law, chapter 3 demonstrates the author's formidable linguistic skills. The work of foreign translators in the employ of Chinese officials, Peter Parker, W. A. P. Martin, and John Fryer, provided the first comprehensive Chinese versions of major Western works on international law. Svarverud's painstaking analysis of these works illustrates the linguistic hurdles that Western international law posed for early translations. Chapter 4 looks at the early discourse on international law prior to the Sino-Japanese War. The author examines the opinions of an array of Chinese observers including Guo Songtao, first ambassador to London and Paris; Zheng Guangying, merchant and reformer; Wang Tao; and Zhang Zhidong. While Chinese opinion varied on key points, many agreed that a relatively weak China might gain some protection from adherence to international law. Svarverud concludes that prior to the Sino-Japanese War, experience and knowledge in international law were lacking. However, the realization "that China can only be recognized in international affairs if she...

Zhang Yinlin’s motivation for writing Early China was similar to that shared by most other writers of general histories during these years, patriotism and a concern for the fate of the Chinese nation and its peoples. While closely involved in the transformation of Chinese historical thought and writing in early 20th century China, Zhang Yinlin stood aside from the mainstream of developments and was not closely aligned to any particular school. One of the reviewers of Early China argued that what non-specialist readers wanted in a history of this kind was a story, China’s story, based on real events but told in a manner that would provide for readers a sympathetic engagement with what was known of early Chinese history. This was exactly what Zhang had tried to achieve, a lively, interesting and engaging account of Chinese history that people would want to read. Keywords: Chinese historical thought; Chinese nation; Early China ; general histories; patriotism; Zhang Yinlin

Principles in Modern International Law (Certain Issues of Concept, Nature, Genesis, Substance and Scope)

The last decade of the Qing dynasty (1644-1911) and Republican period (1912-1949) saw intensive efforts to revise the Qing Code, promulgate modern legal codes based on Japanese and German law, establish a modern system of courts, and develop a professional corps of lawyers and jurists (Huang 2001; Xu 2001; Yeung 2003; Young 2004; Neighbors 2004). These institutional reforms were implemented as part of the drive to have extraterritoriality rescinded and safeguard the sovereignty of the Qing dynasty and then Republic of China. The reforms were accompanied by new categories within civil and criminal law (including a new conceptual distinction between the two), new conceptions of legal knowledge and expertise, and rich discussions over sources of law which took place within the legal realm as well as the readership of Republican newspapers and journals (Young 2004; Lean 2007). If, as Roger Berkowitz (2005, 1) writes in his study of scientific codification in continental Europe, “in a legal system, there must be some way that the law comes to be known,” how did ways of knowing law change during this period of legal reform and broader intellectual change? Through a survey of jurisprudence textbooks and other legal publications, this paper argues that writers in early 20th-century China came to define jurisprudence (faxue, falixue) in positivistic terms, ultimately using new conceptions of science (kexue) and social science (shehui kexue) to identify its place within a new ordering of modern knowledge.

This article attempts to answer the question of "love" and why it has been prohibited from entering the public sphere in Chinese history. This article takes the "Love Letter Incident" as a case study and uses the process tracking method to analyze the love letter incident between Du Chengshu (杜成淑) and Qu Jiang (屈疆). In this event, various social groups interacted on this matter, so this article horizontally compared the thinking and self-expression of young men and women in the face of love issues and vertically explored the premature and delayed disclosure of love issues under the trend of gender equality in China since the early 20th century. Examining and evaluating love issues by various parties in the public sphere is necessary for private love writing to move toward the public sphere. Through various evaluations of love letters, the issue of love has entered the public sphere. However, in China at the beginning of the 20th century, the issue of love still faced scrutiny from traditional Chinese gender morality and morality, making it difficult for love issues to be made public. This article finds that in early 20th-century China. The concept of "gender equality" accompanied by China's modernization movement (May Fourth Movement) was valued by society, and the morality of "gender equality" has never been established. However, Chinese society still maintains an unfriendly attitude towards women, and the perception of gender inequality is still considered normal.

Buddhism and historicity in early 20th century China. Ouyang Jingwu, Taixu and the problem of modernity

This article endeavors to provide an overview on contemporary Chinese philosophy. The focus is on contemporary Chinese philosophy in the Chinese-speaking world, particularly after the 1950s, although contemporary Chinese philosophy both in its inception in early 20th century China and in the English-speaking world are also explored. In addition to designating separate genres of contemporary Chinese philosophical interpretation and construction, including some of the major issues under discussion and debate as well as giving attention to several representative scholars, this article also teases out the historical contexts in which those issues emerged and developed, and it highlights the salient feature of contemporary Chinese philosophy in general.

Relying on the theory of institutional entrepreneurship and Seo and Creed model of human praxis, this article delivers insights on how three institutional entrepreneurs, Xie, Xu, and Pan, mobilised resources (e.g. political position, education, and social connections) to organise an emerging profession and change the way accounting was practised in early 20th century China. Despite tensions among the three institutional entrepreneurs, their collective contribution moved accounting practice to a new level of sophistication to help facilitate economic reform and business development in China. This study illustrates how the accounting entrepreneurs relied on their beliefs to strive for accounting reform and adapt accounting practice to the demands of a changing institutional environment within economic reform. This research enhances knowledge on an important period of accounting history in China, considered to be the beginning of modern accounting development, as well as adding knowledge on accounting development from a human praxis perspective.

The Chinese term ‘ gong-yi’ (公益), which is usually translated as ‘philanthropy’ or ‘public interest’ in English, has long been regarded as a new modern concept which originated from Japan in the early 20th century. This study, however, finds that it appeared in China no later than the middle of the Qing Dynasty. At that time, its usage had three major meanings: economic benefits; national interests; and local public affairs. The ‘national interest’ meaning of the term was most likely introduced into Japan and was brought back into China in the late 19th century along with the new thinking of the Meiji Restoration. ‘ Gong-yi’, with its newly coined meaning, was used as an ideological term to express ideas about reformation in early 20th century China. It was in this capacity that the Chinese ‘ gong-yi’ was swiftly popularized and often referred to the reformation as national interest. At the same time, the denotation of ‘ gong-yi’ was sometimes ambiguous, wavering between ‘the nation’ and ‘the local’. It reflected the volatile conflict between the state and the local over legitimate control of ‘public’ resources in a transitional period. In my view, the question of to what extent this interlock between the emergence of modern ‘ gong-yi’ and the nation’s modern transition might have shaped the historical formation of Chinese citizenship yields insights for the investigation of the nature of Chinese philanthropy and its essence in the public spirit.

The international principle of is well recognized under international law, and is an outgrowth of the general obligation of States to do no harm. The due diligence principle imposes an obligation on States to take affirmative action to ensure their territory or objects over which they maintain sovereign control are not used for internationally wrongful purposes. The due diligence principle has been recognized by international scholars and jurists since the early 20th century, and has been adopted as a principle of customary international law in the international environmental law context by States and courts, including the International Court of Justice. The International Court of Justice has specifically endorsed a procedural aspect of due diligence - that States must conduct environmental impact assessments, where appropriate, as a precautionary measure to ensure their territory is not used for internationally wrongful purposes. In 2013 and 2017, the Tallinn Manual and Tallinn Manual 2.0 confirmed the due diligence principle applies in cyberspace. However, in both manuals, the experts could not agree on the scope of its application. And, in 2017, the Tallinn Manual 2.0 experts agreed that the due diligence obligation does not include a preventive feature, as is reflected in international environmental law. This paper examines this grey area of international law, and whether and to what extent the precautionary principle, as adopted in the international environmental law context, could be applied in cyberspace. After an examination of the precautionary principle as applied, this paper argues its application in cyberspace would help crystallize the due diligence principle from a grey zone in international law into customary international law of cyberspace by introducing a procedural due diligence requirement for States to conduct a cyber impact assessment where appropriate.

The question of relation between the treaty and custom does not present a topic worth particular scientific attention there where the two institutions are not being confused. This does not only occur in Czechoslovak Doctrine of international law, but the reasons for such confusion imprint – in juristic works interpretation – on the functionality of the two institutions a content that is no longer in harmony with the development stage of the contemporary general international law and above all with its peremptory rules. The qualification of international custom as tacit treaty hitherto upheld in Czechoslovak writings of international jurists – is in respect of development essentially in accord with the international law prior to the Great October Socialist Revolution and the actual exposition of the relation between treaty and custom corresponds rather to the period when the coming Soviet power was confronted (also from the power aspect) with the imperialist international legal superstructure. This old conception is, therefore, incapable to express the nowadays indisputable normative reflection of the presence of the socialist social system within the class structure of the international community of states, in the content of its legal order – in the contemporary general international law. The question of the grounds of the origin and binding character of the customary law too little pursued by our juristic works is one of the main reasons for scientifically unfounded favouring of the international treaty to the detriment of international custom – of its functional importance in present day international law. This is in particular evident in the definition of peremptority of profiling rules of the contemporary general international law, their origin and reason for their binding character can not possibly be grasped by treaty form at all. Inapplicable, therefore, are also positivistic interpretations of the origin and binding character of customary law – the interpretation both by fiction of tacit treaty and by means of the so called “recognition” theory – at their time intentionally restricting attention to form which was to be complied with by rule makers, though from such mere form the content of unwritten law can not be known: or just in order to provide room to the positivistic doctrine for speculative deductions about the law as it should be. If it is impossible to elucidate the binding character of treaty rules without taking acount of material sources only sometimes (clausula rebus sic stantibus), then it is necessary to take acount of social and political circumstances – i. e. of material sources – attendant upon the origin of a rule of law and in abstractness expressed in the hypothesis of such rule, in the customary law always. This is indirectly but convincingly corroborated by the most refined of schools of legal formalism – the normativist school – declaring, namely, as a point of its programme material sources an unfit subject of interest of the international law theory, yet in the end the Very same school came to confess its inability to elucidate the origin and reasons for the binding character of international custom just by means of the formal sources of the law. The theoretical foundation for the exposition of the grounds of origin and binding character of international customary law – making use of the material sources of the law – was laid by the Anglo-Saxon law school and so by the school working currently with the instrument of custom even in the domestic field. Decisive for the school is not an a-priori form hypothetically set down by the international law, with which – according to the requirement of the doctrine – practice must comply to enable a customary rule to come into existence, but the very practice of the states is law constituting if it is also general (usus generalis) and if accompanied by awareness of necessity (opinio necessitatis), i. e. by the realisation of unfortunate consequences in the event of different procedure. The Anglo-Saxon interpretation of the grounds of the origin and binding character of the international customary law was adopted by authors of Soviet Doctrine of international law by stating (G. I. Tunkin) that for individual countries it is necessary to regard as binding rules that are recognised by the absolute majority of countries and governed by them, if among them are states of both systems, big powers included. Here the parallel appearing endeavour to bridge the existing dissension in the interpretation of the origin and binding character of international customary law led, however, in the end (most significantly in the instance of G. I. Tunkin) to emphasizing consensus and thereby – conformably to the positivistic school – to the qualification of the international customary law as unwritten treaty; from there is but a little step to absolute favouring of the written treaty against custom, if custom be so described as unwritten treaty. In the Czechoslovak juristic works the treaty is favoured too not only because it is accompanied by an explicit expression of will compared to the hypothetical tacit and moreover presumed expression of will in the instance of custom (whereby treaty character is assigned to custom), but also because written law is attributed a higher value as compared to unwritten law and written treaty rules owing to their precision are designated as more reliable for legal regulation among states, in particular of different systems. The misconception of the value approach is proved by the relation between the customary (i. e. unwritten) general international law as treated in this country on the one hand and its codification on the other which relation is considered to be determined by the principle lex posterior derogat priori. Actually codification does not override any prior generally valid custom regulation, since universality in the acceptance of a codification treaty is as a matter of principle not required for coming in force in the instance of codification. In particular it is impossible Ito split jus cogens by such codification treaty in two particular regulations – one acting among the treaty signatories, the other for the remaining relations, since thereby would be abolished the jus cogens itself which in general international law is invalid ab initio – as also worded in Art. 53 of the Vienna Convention on the Law of Treaties (1969). The purport of codification is, therefore, merely to provide the general international customary law with a binding interpretation otherwise taken care of in the first place by the doctrine. Regarding the rules with which a codification treaty contributes to international law developments, these are of particular validity so long until rendered generally valid by law-creating custom, to which quality the codification treaty could have given just the stabilising impuls, but not the very binding character of legal validity: the same result could be brought about by a universal adoption of the codification treaty which is practically unrealistic. It is therefore wrong to see in the codification primarily a formulation of new rules in written form as currently handed down in the Czechoslovak international law literature, a codification treaty serving in the first place the written exposition of the general international law, a quality not met by newly provided rules in such treaty. Favouring of the treaty on the grounds of its written character to the detriment of custom because of its unwritten form has in the Czechoslovak Doctrine of international law the most serious consequences possibly there where written statements acquire principles of international law in the acts of potentially universal international organisations. To them should allegedly belong the part of general international law or even of a “constitution” wherefrom the validity of concrete rules of the international law is derived, though the very acts of such organisations are but of a recommending nature and the principles contained therein are no rules of international law whatever, being just a generalising interpretation of concrete rules of this law.

States have an obligation to take effective measures to protect persons subject to their jurisdiction from terror. International law provides a framework for counter-terrorist measures both in situations of armed conflict and in other situations. This framework allows for counter-terrorist measures that place limits on certain rights, without destroying those rights themselves. While the threat of modern-day terror may require us to devise new and original methods of defeating terror, these methods must be compatible with the principles of international law. This chapter presents the general picture of international law as it relates to the struggle against terrorism. It concentrates on general principles of international human rights law and international humanitarian law. The chapter's objective is to show that international law makes allowance for effective measures against terror, without endangering the rights of the vast majority of members of society who have no connection whatsoever with it. Keywords: armed conflict; counter-terrorist measures; international human rights law; international humanitarian law; international law; war on terror

This article explores how ancient “Chinese world order”, or “East Asian world order” was operated in Yunnan, located in the borderland between East and Southeast Asia; how Yunnan participated in Chinese world order there. This article argues that Yunnan participated in the ancient Chinese world order from the second century BC to the tenth century. For the most part during the period, Yunnan was located outside the traditional boundary of China, but had constantly engaged with Chinese state. It even became a part of Chinese empire for a certain period. This regions was integrated into Chinese world order through the operations of Chinese institutions, such as “frontier commandaries” and “mofu” systems, as well as “tribute-investiture” relations. Yet, as Nanzhao, a regional state existed in Yunnan from 738 to 902, expanded into northern Myanmar and its vicinities since mid-eighth century, Yunnan started to participate in the Southeast Asian world order. In the ninth century, the king of Nanzhao called himself “Pyu-shin” and “Maharaja” and functioned as a regional hegemon there. However, the expansion of Nanzhao did not mean the expansion of “East Asian world” into mainland Southeast Asia, because it participated in different regional world order, as it expanded there. Therefore, while for instance Goguryeo and the regional tributary system operated by it constituted a part of East Asian world order, Nanzhao and the regional world order operated by it were not a part of it. Indeed, Nanzhao constituted a borderland between the Chinese world and the world of Sanskrit. Therefore, Nanzhao state’s simultaneous participation in these two different worlds reveals the multilayered and interlocked operations of the multiple ancient “world” systems. Yet, from the viewpoint of rulers of Nanzhao, it may have been that “China,” “Tibet,” and “India,” and Pyu states were mere elements that constituted their own regional world order centered around Yunnan.

The ambiguity of scholars' vision of the content of the principles of international law and their corresponding definition in doctrinal discussions can be reduced to two main directions. First, it is a problem of coverage of the concepts of principles of international law of generally accepted principles of law, and, secondly, the problem of limiting the category of principles of public international law to only ten basic principles of international law. These discussions confirm the relevance and urgency of its solution. The general principles of international law, as the inheritance of all mankind, are the result of the development of all legal systems of the world in its legal unity. These principles represent the unity of the general principles of international law, which are inherent only in the international legal system; general principles of law inherent in both national and international legal systems, as the ideological foundations of law; and common principles of national legal systems, which with certain comments can be applied to international legal relations. If we take as a basis Art. 38 of the Statute of the UN ICJ as a conditional list of sources of international law, where generally accepted principles of international law are not provided as such, the interpretation of this article can be imagined as conclusions that the principles of international law as special to general principles of law are norms of international law its reflection in any of the sources of international law, including those, which are unforeseen articles 38 of the Statute of the UN ICJ. The main difference between the principles of international law and general principles of law is that they contain specific rights and obligations for subjects of international law and are directly a regulator of international relations. Such unity can be deduced from the normative interpretation of Art. 38 of the UN Statute, in particular: the sources of enshrining the general principles of international law are customs and international treaties in accordance with paragraph a and paragraph b of Art. 38; the source of the general principles of law is paragraph c of Art. 38 of the Statute of the UN ICJ (general principles of law recognized by civilized nations); the source of identification or the legal basis for the application of the common principles of national law is paragraph d - ex aequo et bono, their application by an international court on the basis of the principle of justice.

The article presents both theoretical and practical reflections on international humanitarian law as a part of public international law. The author analyses the principle of legal certainty as an integral component and foundation of any normative legal regulation within a specific legal field. A correlation is drawn between international humanitarian law and related branches of international law, such as international criminal law and international human rights law. The study discusses the fundamental principles of international humanitarian law in the context of contemporary approaches to its interpretation as jus in bello, with references to previous definitions. The article analyses the definition of international humanitarian law in the context of balancing its two main principles: military necessity and humanity. A distinction is made between international humanitarian law and international human rights law. The study explores scholarly approaches to understanding the interrelationship and mutual influence of international humanitarian law and international human rights law based on the principles of complementarity and affinity. Consequently, the differences between international humanitarian law and international human rights law are identified. The author analyses practical examples of differentiating these branches of public international law at the present stage based on the lex specialis principle. The article also identifies future trends in the continued mutual development of international humanitarian law and international human rights law. It explores the influence of international criminal law on international humanitarian law, establishing that the field of international criminal law complements international humanitarian law, especially when it comes to the practical application of international criminal law norms in punishing acts that fall under the prohibitive norms of international humanitarian law. Finally, the article systematizes approaches to the integration of elements within the system of public international law.