晚清中国对国际法的运用

【作者】 张卫明；

【导师】 金光耀；

【作者基本信息】 复旦大学 ， 中国近现代史， 2011， 博士

【摘要】 由于清政府从已有知识经验和现实利益出发对国际法加以本土化的理解与采择,国际法在晚清中国的运用大致经历了由因应到自觉、由注重工具理性到追求价值理性的整体变迁。由“边缘”向“中心”转化的过程充满复杂与曲折。1874年台湾琉球漂民案,代表着国际法在晚清中国运用的萌芽期。社会各阶层对国际法表现出不同态度及因应。以总理衙门为代表的权力中枢保守地要求日本遵守修好条约。然而,不少知识分子却明确提出要以国际法处理中日在台湾“生番”问题上的分歧,闽台官员如李鹤年多次以国际法为武器,申明中国在台湾全境的主权,要求日本退兵。在中法战争期间,清政府对国际法的运用进入蓬勃发展的阶段。上自总理衙门和军机大臣,下至各省督抚、御史、道员,以及围绕在决策层周围的学士、章京、侍讲,还有活跃在报刊舆论中的知识分子,自觉或不自觉地参与到以公法为武器的外交评论中,形成蔚为壮观的国际法话语圈。即便如此,清政府却对国际法采取本土化的理解和应对,依照中国情境和自身利益加以采择,在宣战、中立和封港等战时问题上表现出对战时国际法的功利主义态度。虽然仍以维护宗藩体系和中国利益为依归,国际法的大量引用表明清政府的公法意识有了较大的提高。19世纪80年代至90年代中期,是中朝关系重新建构的特殊时期,标志着国际法在晚清中国的运用走向高潮阶段。宗藩体系与国际公法的关系进入到互相融合、求同存异的高度。国际法的运用在这一时期体现于：引导并融入到宗藩体系的自适性调整当中,作为重建中外秩序的理论之一中朝关系开始在宗藩体系与国际公法双重秩序下演进。国际法虽仍以工具的姿态出现出外交因应当中,却有秩序建构的意义,尽管没有达到“去中心”化的实际效果。在对待国际法问题上,清朝官员与知识分子有较大差异。前者注重的是国际法的运用及其实际效果,即国际法如何促进中外交往,侧重于“形而下”的层面。后者的努力在于观念层面上的接受,既为西来公法开辟一席之地,又从本土智识中寻找出与之匹配、对应的文化因子,加以认识与反观,侧重于“形而上”层面。知识分子与决策层相似的地方在于,将国际法置于“中国情境”、当作“中国问题”加以应对。通过对传统文化智识的动员和重新解读,知识精英在对近代国际局势与国际公法的比附中,逐渐认识到近代世界仿若春秋战国之重现,所谓公法有如“春秋大义”之威严。他们从“中国立场”和本土智识出发,将有效的传统智识资源转化为积极的近代外交观念,在对外观念、外交战略和行为方式方面寻求近代外交原型,以理想的方式重新建构中国在近代国际局势中的国际角色和国家利益。不过,国际法往往被强权所践踏或利用,甲午战争和庚子之役可以援为引证,恰恰说明国际法在中国的实际运用并非线性发展。尽管国际法并未能突破宗藩体系和完全有效地维护中国利益,清政府却不断利用万国公法与外国打交道、评判国际事务是非。至19世纪末20世纪初,中国的国家主权意识大为增强,并且在帝国主义的“课业”或“教程”激发下,产生了近代中国对国家主权和国际平等的诉求。以主权和平等为轴心的国际法成为中国“国际定位”和重建中外秩序的重要理论框架。在1902—1903年的中美商约谈判中,国际法被清政府自觉地运用于商约谈判。此次修约是晚清时期第一次主动修约。按照国际公法和国际惯例,清政府不仅认识到商约谈判与战败和约的区别,而且还吸取以前不重视关税、主权的教训,依据货物的不同制定相应的税则。清政府尽最大可能地争取主权独立、国家平等和利益互惠,体现了晚清中国向近代民族国家转变中对国际法的自觉运用,这种自觉的运用彰显于对条约字句的考究以及由条款增删体现出来的主权意识。此外,它还反映出国际法知识在中国由自然法学派进入到实在法学派阶段。在公法实践“共时性”中,出现中西并用、新旧杂揉、此消彼长的现象,其中,歧出性与复杂性不容忽视。按照因地制宜、为我所用的原则,清政府在运用国际法的过程中出现“阳奉阴违”、“断章取义”、“囫囵吞枣”等等主观化和功利化的倾向。按照本土情境和利益需要,晚清中国对国际法采取选择性的解读和采择,建构有利于中国利益的公法解释体系。“冲击—反应”模式和“侵略一反侵略”模式都忽略宗藩体系的自适性调整以及与国际法之间的互动关系。宗藩关系在很大程度上规定着国际法“进入”和“冲击”的内容,同时又因国际法的渗透而发生自适性改变。尽管渊源有自,中西体系的差异与相互误解不应视为中西冲突的根源。质言之,晚清中国对国际法的运用,不过将国际法视为对外交往和折冲樽俎的外交武器,实现“自利其国”的外交宗旨。更多还原

【Abstract】 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.更多还原