| Turning to Chinese own intellectual tradition and meanwhile keeping an eye on the reality, the government of the late Qing Dynasty understood the public international law in a perspective of its own and adopted it with a full consideration of its real interests. Generally, the application of the public international law by the Qing government undergone a great change from a forced response (to the contemporary challenge) to a conscious and active activity and from a preference for instrumental rationality to pursuit of value rationality; such a change, so far as the public international law is concerned, was indeed a shift from a "marginal" position to a "central" status, which was full of complications and setbacks.The case of Chinese emigration to the Ryukyu Islands (the Ryukyu-Gunto) in 1874 saw the beginning of Chinese use of the public international law. As a new attempt then, the use of the public international law was faced with a diversified reaction from Chinese elites:the central authority represented by the Ministry of Foreign Affairs held a conservative attitude that Japan should observe the already made peace treaty; many a Chinese intellectual, however, pointed out that the Sino-Japanese dispute over the 'Aborigines' problem in Taiwan must be settled with the help of the public international law; one example of this was that Li He'nian, a representative of Chinese officials in Fujian-Taiwan area, on the basis of the public international law, claimed China's sovereignty over the whole Taiwan and demanded Japan to withdraw its troops from the place.During the Sino-French War from 1883 to 1885, there came a notable development of Chinese use of the public international law. In those years, Chinese elites, including those in the Ministry of Foreign Affairs and in the Ministry of Defense, the trans-provincial governor-generals, the provincial governors, censors, and local administrators, the scholars, secretaries, and reading servants accompanying the decision-makers, together with the intellectuals active in the circle of newspapers and mass medias, consciously or unconsciously threw themselves into the activity of making commentaries on China' diplomacy in the light of public international law, appearing as an important force of international legal discourses in China. Somewhat different from this, the official understanding and utilization of the public international law embraced an obvious Chinese perspective, that is, utilizing the public international law out of a consideration of the real situation and the real interests of China, due to which the utilization was inevitably a changed, selective and pragmatic one; this can easily be seen from China' position on such wartime matters as the declaration of war, nonparticipation in war, and port-closing. Even though it was still placed within the framework of Suzerain-Vassal System of Relationship and of national interests, Chinese use of the public international law evidenced a strengthened awareness of the Qing government of the law.The period from the 1880s to the mid-1890s is an age when Sino-Korean relations had been rebuilt and, at the same time, when Chinese use of the public international law reached its climax. In this period, the public international law and the existing Suzerain-Vassal System of Relationship, in spite of plenty of differences between them, came to merge into each other. It can be seen from the following aspects:the public international law had been introduced into and reconciled with the Suzerain-Vassal System, which acted as one of the theories for China's reconstructing its relations with foreign countries; the Sino-Korean relationship, due greatly to that, went under a rule consisting of both the Suzerain-Vassal System and the public international law; although treated only as an 'instrument' for China's diplomatic response and put only in a 'marginal' status, the public international law played a growingly significant role in order construction.As a diversified response of China to the outside challenge, Chinese use of the public international law can of course hardly be seen as a whole without any distinction within it. As we shall see, the attitude of the Qing government toward the public international law was to a large extent different from that of the intellectuals: the former emphasized the practical use of the law, namely, applying the law to the work of facilitating Sino-foreign relations, which was evidently a pragmatist utilization; the latter laid a stress upon the idea of the law, understating the law by marrying it with the equivalent intellectual resources in Chinese cultural tradition, which was, certainly, a 'metaphysical' accomplishment. In addition to this difference, there existed, however, a similarity between the two:they both considered the public international law in a 'Chinese context', dealing with it as a 'Chinese problem'; seeking help from Chinese intellectual tradition and then having an analogous understanding of modern international situation and of the public international law, Chinese elites of the time thought that the modern world bore great resemblance to China of the Spring and Autumn and Warring States periods, and that the public international law acted a part similar to what the 'Major Principles of Righteousness in the Spring and Autumn Period'(Chun Qiu Da Yi) played. Like the decision-makers, the elites endeavored to seek a diplomatic pattern that favored China in redefining its role in the modern international society and, in the meantime, helped to protect its national interests.However, Chinese use of the public international law was not always running in a straight line. As we shall see, the public international law had often been broken or unjustly employed by the big powers, which was clearly evidenced by the Sino-Japanese War from 1894 to 1895 and by the War and Chaos in 1901. Even so, the Qing government, by applying the international law, though still in the framework of the Suzerain-Vassal System, tried to make contacts with other countries and to have a voice in the international affairs. Until the end of the 19th century and the beginning of the 20th, Chinese consciousness of sovereignty had been greatly promoted and, stimulated by the 'Imperialist International Law Class-work' or the like 'course', a requirement for China' sovereignty and international equity had been put forward. By this time, a sovereignty-and democracy-oriented public international law came to be Chinese own theory for 'redefining China's role in the international community' and for rebuilding its relationship with other powers. The Sino-U.S. Negotiation for Commercial Treaty from 1902 to 1903 witnessed the Qing government's conscious use of the public international law; as an active participation, Chinese revision of the commercial treaty was an unprecedented attempt in revising treaty made by the government of late Qing Dynasty. In the light of the public international law and of the common international practices, the Qing government had come to know the distinction between a commercial treaty and a peace treaty, could draw a lesson from its indifference to tariff and sovereignty, could make effective tariff regulations of its own, and could try hard to struggle for its independence and sovereignty, its status equal to others and reciprocity of benefits. Such an attempt and effort indicates that Chinese could consciously apply the public international law in the great transformation of China from an old dynasty to a modem nation-state, and that with its application in China the public international law came to be used as a positive law instead of a natural law.In the course of Chinese use of the public international law a fact deserves our special attention:the public international law was used together with Chinese own intellectual resources; the new things were intermingled with the old; and the interaction of the two parts occurred with one falling while another rising. Such a fact made the application of the law more complex. Because it followed an extremely contingent and pragmatic principle of international contacts, the Qing government, however, had many problems made in the use of the public international law, such as 'saying one thing and doing another','quoting out of context to suit a certain purpose', and 'reading without full comprehension'. In order to maintain its own status and protect its national interests, China employed the international law selectively and interpreted it in favor of itself. Such a situation, as we can see, could hardly be well explained by the so-called 'impact-response mode', or the 'tradition-modernity mode', or the 'imperialism mode'; none of the three, as should be noted, pays attention to the adaptive efficacy of the existing Chinese Suzerain-Vassal System and the interaction between the system and the public international law. Unlike what the three modes tell, the Suzerain-Vassal System to a great extent defined the content of the public international law which was to be made to 'step into' and 'impact'; in return, the public international law had the system undergo a self-adjustment change; in this sense, we can say that the differences between Chinese and western systems of relationship and the mutual misunderstanding between China and the West were not the sources of their conflicts.In short, the public international law used in the late Qing Dynasty had just been treated as a weapon for China's international contacts, e.g., China's engaging in diplomatic negotiations, and for its endeavors to achieve a 'self-interest' diplomatic goal. |
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