Treaties, East Asia and the Pacific

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Treaties, East Asia and the Pacific

In international law, a treaty is defined as a written instrument whereby two or more states signify their intention to establish a new legal relationship, involving mutually binding contractual obligations. Any such agreement that is not based on the mutual recognition by the contracting parties of their respective equality and sovereignty, and that does not contain the element of reciprocity insofar as rights and obligations are concerned, must appear to be legally somewhat incongruous. However, it has long been held that a substantial part of what constitutes international law rests upon the usage and practice of sovereign states. International treaties ought to be studied from the point of history and international law. The so-called Unequal Treaties concluded between the Western powers and China in the nineteenth century are a case in point.

The concept of the Unequal Treaties originated with contemporary Western writers on international law. While the treaties furnished a legal basis for the Western presence in China's Qing empire (1644–1911), the term Unequal Treaties came to symbolize the special type of Western imperialism in Asia. The beginnings of the Unequal Treaties can be found in the peace treaty of Nanjing (1842), which brought to a conclusion the first Anglo-Chinese War (1839–1842), usually somewhat misleadingly referred to as the first Opium War.

What began as a punitive expedition led to a profound alteration of China's external relations. Under the Treaty of Nanjing, China was forced to open five ports to British commerce, and British merchants had the right to settle and trade there. Crucially, British subjects residing in these so-called treaty ports enjoyed extraterritoriality, that is, they were not subject to Chinese jurisdiction. Exploiting the country's weakness, other colonial powers, led by France and the United States, forced China to conclude similar agreements.

All the treaties concluded in this period contained a most-favored-nation clause, and all the privileges conferred in them were automatically extended to the other treaty powers. In this sense, it is possible to talk of the "treaty system." In its essence, the system was completed by 1860 with the conclusion of the Treaty of Tianjin at the end of the so-called Second Opium War (1856–1860). Under the provisions of the treaty, China was forced to accept the establishment of permanent diplomatic relations with the outside world. Further provisions included the opening of eleven more treaty ports, now even in the interior of the country, and more especially in the prosperous Yangzi Basin (the number of treaty ports would eventually rise to forty-eight by the eve of World War I in 1914); the freedom of travel for all foreigners; and, controversially, the freedom of movement and religious practice for Christian missionaries.

The Treaty of Tianjin marked the end of the dramatic phase of the opening of China. Yet, the treaty systems continued to evolve, so much so that by the beginning of the twentieth century it had grown to such an extent and to such a complexity that it was impenetrable to all but highly specialized legal experts. In fact, Chinese lawyers now began to challenge the Western powers with their own legal weapons. The Unequal Treaties remained in force until their negotiated abrogation in November 1943.

Although the treaty system was avowedly "unequal" in that the treaties constituted an enforced, unilateral infringement of Chinese sovereignty, in practice the system was more ambiguous. The extraterritoriality clauses meant that the citizens of the treaty powers were exempted from Chinese jurisdiction, and could only be tried in a foreign, and in practice this usually meant consular, court. However, judicial exemption did not constitute a claim to separate territorial rights.

The treaty ports were not colonies; in most of them Chinese authority was not infringed. A partial exception was the small number of "concessions"—clearly delimited residential districts leased to foreign governments, such as those in Shanghai and Tianjin. The treaty system cloaked the Western (and later Japanese) presence in the Qing empire in excessive legalism. It furnished the juridical basis of informal imperialism, while the treaty ports were the "bridgeheads" of the foreign presence in China.

The historical significance of the treaties is beyond doubt. Between 1842 and 1943 China was a country of at least partially impaired sovereignty, underscoring its position as an object of Great Power politics. The almost automatic extension of commercial privileges to all treaty powers was a de facto institutionalization of the "open door," that is, the notion of equal opportunities in the economic penetration of China.

To some degree, the treaties also represented a mid-nineteenth-century confluence of Western and Chinese interests; both sides were anxious to establish standardized commercial practices and to minimize the disruptive influence of smuggling and piracy. In the longer term, however, the treaties provided the main focus for an emerging Chinese nationalism and an ideal vehicle for anti-imperialist and anti-Western propaganda.