Vol. 8, No.

2, April 2011 80
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__
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istory & Culture u _g
I
N the sixteenth and seventeenth centu-
ries, modern international law began to
appear and develop in Europe, but the
Chinese feudal dynasties with Sino-centric
concept of Tianxia still regarded China as
the centre of the world.
(1)
China made the first
regulation of conflict between nations in Yon-
ghui Code in the early Tang Dynasty (618-907
AD) which provided that: a dispute between
two aliens of the same nationality should be
solved according to their own law and custom
while a dispute between two aliens of differ-
ent nationalities should be solved according
to Chinese law. According to the annotation
of Yonghui Code, the term alien referred
to foreigners, that is to say, subjects of other
kingdoms or countries. Because aliens have
their own customs and laws, the judge should
decide their cases according to their own law.
With regard to disputes between nationals of
different countries, for example, a national of
Koryo and a national of Paekche, the judge
should resolve disputes according to Chinese
law.
(2)
This advanced international law idea
was followed just for a short period of time
and was quickly replaced with territorial ju-
risdiction. China exercised absolute territorial
jurisdiction and decided all criminal cases ac-
cording to Chinese law during the Song Dy-
nasty (960-1279 AD).
(3)
In a country closed
to the outer world, international law was just
unimaginable.
The conflict between Chinese and Western
customs began to appear at the end of the
Ming Dynasty (1368-1644 AD) and the begin-
ning of the Qing Dynasty (1616-1911 AD). The
Chinese traditional tributary system of foreign
relations and the treatment of aliens under-
went impacts from the international law sys-
tem of Western countries based on the notion
of sovereignty. During this time, missionaries
were the second largest group (only smaller
than merchants) of foreigners in China. Those
foreign missionaries were highly regarded by
the then emperors such as Emperor Wanli of
the Ming Dynasty, and emperors Shunzhi and
Kangxi of the Qing Dynasty. During the latter
part of the seventeenth century, missionaries
first tried to translate Western international
law books into Chinese and promoted the
application of international law in Chinese
diplomatic relations with other countries. This
was the beginning of the introduction of in-
ternational law into China. In this sense, the
introduction of international law to China
confirmed a classical saying: the history of
international law should not be separated
from the history of religion and intellectual
history.
(4)

1. International Law Education
Background of Missionaries
Religion is closely linked to the world of hu-
man beings and is a form of culture. Religion
and law are two closely linked social phenom-
ena. It is a fact that religion has had much im-
pact on the development of international law.
Religious oaths and ceremonies were widely
used in affairs related to treaties and wars in
ancient times, and played an important role
in strengthening the authority of ancient in-
ternational law. The term jus gentium of the
ancient Roman law at first referred to interna-
tional law. Jewish law, Islamic law and other
religious laws contained international law ele-
ments, and were important sources of ancient
and medieval international law. The develop-
ment of international law almost stopped in
Europe during the eleventh and twelfth centu-
ries. Because of the emergence of nation-states
1. Zhou Zhenhe, Research into Matteo Riccis World Map, China
Surveying and Mapping [J], 2005, Vol. 4, pp. 60, 61.
2. Zhengsun Wuji, Annotations of the Laws of Tang Dynasty [M], Liu
Junwen ed., Huangshan Press, 2002, p. 63.
3. Dou Yi, Criminal Law of Song Dynasty [M], Liu Junwen ed., Huangshan
Press, 2002, p. 87.
4. Alfred Verdross, International Law [M], translated by Li Haopei,
Commercial Press, 1981, p. 44.
The introduction of international law to China was not a one-way process, but one of clash and relative growth and
decay between the traditional Chinese external order based on the concept of Under the Heaven and the modern
world order dominated by the West. It was marked by the two events: Western missionaries translated the Western
works of international law at the end of the Ming Dynasty and begining of the Qing Dynasty, and international law
was applied in the negotiation of international treaties.
81 ]Q_Q
2011

4
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Vol. 8, No. 2, April 2011 82
Chinese Cross Currents
__
H
istory & Culture u _g
in Europe, international law began to develop
again around 1300. Canon law contained the
rules for international relations. The law of
treaties, the law of territory, arbitration law,
the law of war, maritime law, and rules on em-
bassies and consulates developed to a certain
degree. There were a number of international
law scholars in the latter part of the sixteenth
century prior to the birth of Hugo Grotius,
such as Francisco de Vitoria, Francisco Suarez,
Conrad Branu, Alberico Gentili and Balthazar
Ayala, all of whom held ecclesiastical teach-
ing positions.
Jean Bodin, a French political thinker
and jurist, for the first time clearly advocat-
ed the notion of sovereignty in 1577 in his
famous The Six Books of Republic, which pro-
vided the necessary basis for the emergence
of modern international law. Hugo Grotius,
father of modern international law, thought
that international law consisted of natural
law originating in the will of God and jus
gentium originating in the will of human be-
ings. His books, such as Commentary on the
Law of Prize and Booty, Mare Liberum and The
Rights of War and Peace, were deeply influ-
enced by religion, covered all the topics of
international law of that time and provided
a full theoretical basis for the birth of mod-
ern international law.
In the sixteenth and seventeenth centu-
ries, thousands of missionaries entered semi-
naries and joined the Society of Jesus when
they were teenagers. They studied theology
as well as a wide range of natural and social
sciences under the instructions of top schol-
ars to become elites who were both scholars
and missionaries. International law as one
of the oldest legal disciplines was attached to
theology in medieval times. Therefore, mis-
sionaries undoubtedly were well-trained in
international law.
2. Introduction of International Law by
Giulio Aleni
Giulio Aleni (1582-1649) was a famous
Italian missionary during the Ming Dynasty.
He came to China in 1613 and worked in Chi-
na for decades before he died in 1649 in Yan-
ping, Fujian Province. He was the most distin-
guished missionary in his time, between the
time of Michele Ruggleri and Matteo Ricci, and
the time of Johann Adam Schall von Bell and
Ferdinand Verbiest.
(5)
Giulio Aleni took several
effective measures to spread the Catholic faith
in Fujian Province over his whole life and was
the summit of his career. He was learned, had
wide connections with Chinese people, wrote
a lot, and won himself the name of Apostle
of Fujian.
He made a comparison of the Chinese law
and Western law in 1623 in Accounts of For-
eign Countries (Zhi Fang Wai Ji): The tax rate
in Europe is no more than 10%. People will-
ingly pay their taxes without being forced by
the state. The litigation is simple. Small dis-
putes are mediated by honourable people in
the neighbourhood while major disputes are
heard by judges according to the law, which
is prescribed in detail by the state.
(6)
Later
when commenting on Spain, he said that A
missionary named Francisco Suarez wrote De
Legibus ac De Legislatore (On Laws and God as
Legislator). This book is well-written and wide-
ly read, better than books by other authors in
the past hundred years.
(7)
Francisco Suarez
(1548-1617) was a Spanish Jesuit priest, phi-
losopher and theologian. He was one of the
founders of international law and wrote ex-
tensively. Although not a complete collection
of his works, his Opera Omnia (Paris edition)
contained 28 volumes. De Legibus ac De Legis-
latore was an extensive and systematic inter-
national law book, integrating history, reli-
gion, philosophy, and law. It analyzed natural
law and jus gentium and met the demands of
the time. As one of the representative schol-
ars of natural law, Francisco Suarez held that
the authority of international law was natural
law such as the conscience, rationality and le-
gal consciousness of human beings. Because
Francisco Suarez was very famous, this book
5. Xu Minglong, Commentary of European Missionaries in China
before the Eighteenth Century, World History [J], 1993, Vol. 4, p. 20.
6. Giulio Aleni, ((|)Zhi Fang Wai Ji [Accounts of
Foreign Countries] [M], Annotated by Xie Fang, , Zhonghua Book
Company, 1996, p. 73.
7. Ibid.
83 ]Q_Q
2011

4
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Vol. 8, No. 2, April 2011 84
Chinese Cross Currents
__
H
istory & Culture u _g
was widely used by most European universi-
ties as textbooks and had long-lasting and
profound influence. Besides De Legibus ac De
Legislatore, Francisco Suarezs international
law books included another book published in
1621 after his death, which contained a large
part on the law of war. When translating H.
Wheatons Elements of International Law at the
end of the Qing Dynasty, William Alexander
Parsons Martin (1827-1916) praised the use of
publicists teachings: Authoritative publicists
of different countries can give proof of what
states belief and act. If not challenged by oth-
ers but cited by later kings and ministers as
guidance, their teachings will be more and
more authoritative.
(8)
As a renowned theolo-
gian professor and international law scholar,
Francisco Suarez had many students. Many
missionaries who worked in China studied in
Academica Coimbra where Francisco Suarez
worked as a professor. Therefore, Francisco Su-
arez undoubtedly could be regarded as a most
qualified publicist in Europe.
Giulio Alenis other book, Xi Xue Fan pub-
lished in 1623, demonstrated a general ten-
dency of theological natural law and interna-
tional law. This book introduced the various
disciplines of studies in the West: books are
generally of six disciplines, i.e., arts, sciences,
medicine, law, pedagogy, and theology.
(9)
The
discipline of law studies how kings manage
their states and solve disputes between people.
The codes are orders of the god, backbones of
the state, and armour of morality.
(10)
Giulio
Aleni also mentioned that the West estab-
lished law schools in Roman times to teach
how to solve disputes. If students could per-
form very well in a rigorous examination with
a high score after six years of study, they could
get a position with secular responsibilities.
The codes mentioned by Giulio Aleni when
discussing the Western legal systems referred
not only to criminal law, but also civil law, in-
ternational law and other laws.
As far as Giulio Alenis sources of ideas
are concerned, St. Thomas Aquinas theory
was the most important before the sixteenth
century. St Thomas Aquinas classified the law
into four categories: eternal law, natural law,
divine law and human law. Human law refers
to state law in the general sense. Eternal law
is the supreme law and human law shall not
conflict with natural law and divine law. In Xi
Xue Fan, Giulio Aleni first introduced Thomas
Aquinas theological theory into China and
zealously promoted its exemplary significance
in the Christian philosophy: Thomas Aquinas
was learned and wrote extensively. He cited
past writings and wrote Summa Theologica. His
writing is the clearest, simplest, and most ac-
curate. All later theological students admired
his writings.
(11)

Giulio Aleni surely knew Thomas Aquinas
theory of the four categories of law and their
hierarchy, knew his special requirements on
human law, and the general meaning of secu-
lar law or human law from the perspective of
theology. Even when discussing the discipline
of law in Xi Xue Fan, Giulio Aleni did not for-
get to say that theology is the most important
among all the six disciplines law included, be-
cause all other disciplines study the human
being while theology studies the heaven.
(12)

In the eyes of Giulio Aleni, the discipline of
law only studied the secular law and its con-
tent and purpose were below theology.
3. The Translation of International Law
by Martino Martini in China
The idea of international law could not be
introduced into China in isolation. Only when
China understood the world outside China
and the international community consisting
of nation states, could China understand and
accept the idea of international law.
(13)
At the
end of the Ming Dynasty and the beginning
of the Qing Dynasty, Martino Martini (1614-
1661), a Jesuit missionary, tried to introduce
international law into China.
8. Ibid.
9. Giulio Aleni & Xi Xue Fan, Tian Xue Chu Han|[M],
compiled by LI Zhizao, Taiwan Student Book Co. Ltd., 1965, pp. 31,
45, 27, 27.
10. Ibid.
11. Ibid.
12. Ibid.
13. H. Wheaton, Elements of International Law [M], translated by William
Alexander Parsons Martin, China University of Politics and Law
Press, 2003, p. 37.
85 ]Q_Q
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Vol. 8, No. 2, April 2011 86
Chinese Cross Currents
__
H
istory & Culture u _g
Martino Martini was an internationally
renowned sinologist, historian and geogra-
pher. He was born in 1614 in Trento, a north-
ern city of Italy. After studying in the Society
of Jesus in his hometown in his early years,
he entered the Roman College and joined the
Society of Jesus. Martini arrived in China in
1643. He diligently studied the Chinese lan-
guage, read many ancient Chinese books and
acquired much knowledge of Chinese history.
He travelled in Zhejiang, Shanghai, Fujian,
Guangdong, Beijing and many other places
in China, in fact more than half of China, to
spread the Catholic faith.
Martino Martini lived in Hangzhou and
Ningbo during the period of 1648 to 1650.
With the help of Zhu Zongyuan, a Chinese
follower, he tried to translate De Legibus ac De
Legislatore written by Francisco Suarez but did
not finish the translation work
(14)
and get it
published.
(15)

At the beginning of his translation work,
Martino Martini was Superior of the Hang-
zhou Society of Jesus (1648-1650). He moved
to Beijing in 1650 and was appointed as the
Delegate of the Chinese Mission Superior to
defend Chinese rites in Rome. He left China for
Europe in 1651. However, his personal interest
switched from promoting Christianity in Chi-
na to introducing China to Europe. He wrote a
lot about China in Latin on his journey, which
made him famous. With too much work on
hand, he did not finish translating De Legi-
bus ac De Legislatore. He left Europe in 1657 to
embark on his second journey to China. This
journey was very difficult because of attacks by
pirates and storms. He left Rome with 18 mis-
sionaries but only six arrived in China. There
is not much record of his activities during this
period. For Martino Martini, the work of trans-
lating Suarezs book was only one of many
plans. Of course, there were personal reasons
for the discontinuation of this work.
(16)

4. The International Law Practice of
Vittorio Ricci in China
Vittorio Ricci (1621-1685) was an Italian
missionary. He left Europe in 1646, arrived in
Philippines in 1648 and later arrived at Xia-
men, China, in 1655, where he established
residence. As a missionary, he travelled back
and forth between China and other places in
the Far East and lived an adventurous life.
He provided good offices for diplomatic af-
fairs of Chinese, Spaniards and Portuguese
with his international law knowledge.
(17)

During this time, Taiwan witnessed a major
historical incident. Zheng Chenggong, or
Koxinga, defeated the Dutch and took back
Taiwan in January 1662. The Dutch agreed
to retreat from Taiwan. Frederick Coyett
(1620-1687), the Dutch Governor, signed a
treaty on behalf of the Dutch government.
In this treaty, the two parties agreed to ex-
change prisoners of war and China allowed
the Dutch troops to take their belongings
when they left. This might be the first treaty
signed on equal terms by a rebellious Chi-
nese local government with Western coun-
tries.
(18)
Zheng Chenggong made strategic
use of international law, which was unfa-
miliar to him. This treaty provided that the
two parties should sign, affix seals and take
oaths according to their own customs. Sur-
prising enough, the Dutch did not mention
Hugo Grotius or his works during the whole
negotiation process, although the works of
Hogo Grotius, a Dutchman and the father of
modern international law, were well-known
in Europe. Influenced by the Chinese tradi-
tional tributary system, Zheng Chenggong
later sent Vittorio Ricci to the Philippines to
persuade Spaniards to pay tribute to Taiwan.
Vittorio Ricci was refused and left the Phil-
ippines. But he continued to get involved in
other diplomatic affairs and seemed to es-
pecially enjoy these missions. He revisited
14. Giuliano Bertuccioli & Federico Masini, Italy and China [M], translated
by Xiao Xiaoling & Bai Yukun, Commercial Press, 2002, pp. 153,
148.
15. Qiu Hongda, Chinese International Law Issues, Taipei Commercial
Press, 1972, p. 2.
16. Zeng Tao, Modern China Encountering International Law, Journal
of China University of Politics and Law [J], 2008, Vol. 5, p. 103.
17. Giuliano Bertuccioli & Federico Masini, Italy and China [M], translated
by Xiao Xiaoling & Bai Yukun, Commercial Press, 2002, pp. 153,
148.
18. Yang Zewei, Comments on International Law [M], China Renmin
University Press, 2007, p. 295.
87 ]Q_Q
2011

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Vol. 8, No. 2, April 2011 88
Chinese Cross Currents
__
H
istory & Culture u _g
Manila in April 1663. This time he was the
diplomat of Zheng Jing, the son and succes-
sor of Zheng Chenggong, to re-establish the
international relationship with the Philip-
pines broken by his last visit. He succeeded
this time and was warmly received.
(19)

5. Encounter with International Law at
the Beginning of the Qing Dynasty
a. The First Encounter with International
Law by the Qing Government
The first encounter of international law
by the Qing Government happened in the
period of 1662 to 1690 during the interaction
between the Qing Government and the Neth-
erlands.
(20)

After its defeat in Taiwan, the Dutch hoped
to sign a treaty with China and tried to ne-
gotiate with Chinese officials for this purpose.
During the negotiation, the Dutch insisted
that diplomats be immune from detention
and cited international law and the customs
of all sovereign states to support their position.
Of course, the Chinese could not understand
and accept this position. The officials of the
Qing government had no idea that the inter-
national community consisted of major Euro-
pean states which interacted with each other
on an equal footing and followed common
rules. They insisted on Chinese tradition and
tried to maintain the tributary system.
b. The Application of International Law in
the Treaty of Nerchinsk
China signed the Treaty of Nerchinsk with
Russia on 8th September 1689. This treaty
is the first equal treaty signed by China and
a Western country in modern times. At that
time, Russia was familiar with and made fre-
quent use of international treaties, customary
international law, and general principles of
law as the main sources of international law
and judicial decisions, teachings of most qual-
ified publicists, and resolutions of internation-
al organizations as supplementary sources of
international law. China was unfamiliar with
international law then. To defeat rebels in the
northwest, Emperor Kangxi hoped to end the
war with Russia as soon as possible and to sign
a treaty to bind Russia. Weighing up the pros
and cons, China abandoned the traditional
position to treat Russia as a tributary state.
The negotiation process was difficult. Two
missionaries, Jean Francois Gerbillon (1654-
1707), a French national, and Thoms Pereira
(1645-1708), a Portuguese, were allowed by
the emperor to join in the Chinese delegation
as translators and advisors in 1688. The Em-
peror employed them more because of their
knowledge of Western international relations
and international law than because of their
abilities in translation. These two missionar-
ies worked diligently, finished the negotiation
and each made records in their diaries. Their
diaries mentioned more than once some ba-
sic elements and principles of international
law, such as the equality and mutual benefit
of sovereign states, the nature and position of
diplomats in diplomatic affairs, and the no-
tion of just and unjust wars.
The negotiation to a certain extent fol-
lowed Western international law. Firstly, the
two states regarded each other as sovereign
states and regarded Emperor Kangxi and Peter
the Great as equal counterparts. Secondly, the
two states demarcated the border and agreed
that the Argun River and Greater Khingan
Mountains would form the borderline of China
on the south and Russia on the north. Thirdly,
the treaty made provisions on aliens and mer-
chants. For example, this treaty provided that
aliens were allowed to reside in their current
places and merchants of both states were al-
lowed to engage in trade if they had passports.
Fourthly, this treaty made provisions on judi-
cial assistance. It provided that if hunters in
small numbers crossed the border to hunt or
engage in larceny, they should be deported
and handed over to their state of nationality
to be dealt with according to the law of their
nationality; if hunters in large numbers cross
19. Giuliano Bertuccioli & Federico Masini, Italy and China [M], translated
by Xiao Xiaoling & Bai Yukun, Commercial Press, 2002, pp. 153,
148.
20. Wang Tieya, China and International Law: History and Today,
China International Law Yearbook [M], Peking University Press, 1991,
p. 22.
89 ]Q_Q
2011

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Vol. 8, No. 2, April 2011 90
Chinese Cross Currents
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H
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the border to hunt or engage in larceny, they
should be deported and handed over to the
state of nationality to be sentenced to death.
Fifth, the treaty was written in three languag-
es, i.e. Chinese (the language of Manchu),
Russian, and Latin, with the Chinese and Rus-
sian texts being equally authentic.
(21)

As far as these provisions are concerned,
the two parties negotiated on equal terms. The
drafting and the text of the treaty, as well as
the mechanism puting it into effect, reflected
the principle of equality of sovereign states un-
der modern international law, both in terms of
form and content.
However, the negotiation of this treaty did
not really usher a beginning of modern diplo-
macy for China. China was a feudal empire
developed independently with its own culture.
Rulers maintained their respect with seclu-
sion and conservativeness. They developed
their view of the world and thinking based
on a long history and with a sense of cultural
superiority. Which were accepted by Chinese
people as a matter of course. They could not
correctly judge the position of China in the
changing world of the sixteenth and seven-
teenth centuries.
The Treaty of Nerchinsk was an excep-
tion in Chinese traditional diplomacy. Earl
Macartneys visit in 1789 and other important
foreign affairs were also sporadic and discon-
tinuous. In the following years of more than
one hundred and fifty, nobody mentioned
international law until Lin Zexu formally en-
countered international law for the first time
when he confiscated and destroyed opium in
Guangzhou in 1839. In the Chinese diplo-
macy before the Opium War of 1840, China
engaged in diplomacy as a superior state but
its position was reversed after 1840.
Foundati on Proj ect: Guangdong Provi nce
Social Science Planning Project GD10DL04.
Translated from the Chinese original
by You Mingqing
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Wang Chaojie, of Han nationality, was born in 1974
in Henan Province, Dan Cheng county. He graduated
in 1998 from the South-Western University of Political
Science. Since 2002, he has taught at Guangdong
Zhaoqing University, focusing on International Law
Studies, International Relations Studies pedagogy and
scientific research work. In Sociology Forum, Frontier,
Zhaoqing University Academic Journal, Culture Magazine
and other periodicals, he has published more than ten
articles.
21. Wang Tieya, Compilation of Old Treaties of China and Other Countries
[M], Sanlian Press, 1957, p. 5.