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Zhipeng He
Lu Sun

A Chinese
Theory
of International
Law
A Chinese Theory of International Law
Zhipeng He Lu Sun
•

A Chinese Theory
of International Law

123
Zhipeng He Lu Sun
Research Center of Legal Theory, School of Jilin Academy of Social Sciences
Law, Collaborative Innovation Center of Changchun, China
Judicial Civilization
Jilin University
Changchun, China

ISBN 978-981-15-2881-1 ISBN 978-981-15-2882-8 (eBook)

https://doi.org/10.1007/978-981-15-2882-8
Jointly published with Law Press China
The print edition is not for sale in China. Customers from China please order the print book from: Law
Press China.
ISBN of the Co-Publisher’s edition: 978-7-5197-0640-1

© Law Press China and Springer Nature Singapore Pte Ltd. 2020
This work is subject to copyright. All rights are reserved by the Publishers, whether the whole or part
of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations,
recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission
or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar
methodology now known or hereafter developed.
The use of general descriptive names, registered names, trademarks, service marks, etc. in this
publication does not imply, even in the absence of a specific statement, that such names are exempt from
the relevant protective laws and regulations and therefore free for general use.
The publishers, the authors, and the editors are safe to assume that the advice and information in this
book are believed to be true and accurate at the date of publication. Neither the publishers nor the
authors or the editors give a warranty, express or implied, with respect to the material contained herein or
for any errors or omissions that may have been made. The publishers remain neutral with regard to
jurisdictional claims in published maps and institutional affiliations.

This Springer imprint is published by the registered company Springer Nature Singapore Pte Ltd.
The registered company address is: 152 Beach Road, #21-01/04 Gateway East, Singapore 189721,
Singapore
Acknowledgements

This book is written by our two authors based on a Chinese book with the same
title published by Law Press China, 2017. The Part of Introduction was not in the
original Chinese text; it was specially written for this English version by He
Zhipeng. The other chapters are translated into English from the original Chinese
text chapters. Most of the English translations of this book were done by Sun Lu.
The authors would like to express their sincere gratitude to the National Social
Science Fund of China for their active support for this research. The Chinese
version of this book has been selected as the “National Library of Social Science
Achievements” in China. The English version of this book was selected for the
“Chinese Academic Foreign Translation” project. We must say that without this
support, these two versions won't be possible.
The authors would like to thank Professor Che Pizhao of Tsinghua University not
only for his ideological guidance but also for his academic support and care in life.
The authors especially thank Jilin University School of Law and Jilin Academy
of Social Sciences Institute of Law. These departments have provided a good
research environment as well as a friendly and cooperative research atmosphere.
The colleagues there have shown us a lot of concern and support.
The authors wish to thank the late Professor Zeng Lingliang, who passed away
in 2016, for his academic efforts which laid the foundation for researches in this
field. The authors also wish to thank the international law experts working in the
Treaty and Law Department of the Ministry of Foreign Affairs of the People's
Republic of China, especially Mr. Huang Huikang, Mr. Xu Hong, Mr. Jia Guide,
Mr. Hu Bin, Mr. Gou Haibo, Mr. Qi Dahai, Mr. Song Dong, and Mr. Kong
Xiangwen. Their professionalism and well-established knowledge have given us a
lot of inspiration.
The authors would like to thank those who are pursuing PhD and Master degree
in International Law at Jilin University School of Law, namely Du Qing, Hou
Wanqiu, Hu Peiwen, Meng Lingyu, Shen Tianjiao, Wang Fei, Wang Huiru, Wang
Yizheng, Wang Yunhan, Wei Xiaoxu, Yang Qiuyi, and Zhao Jianzhou. They have

v
vi Acknowledgements

revised and proofread the English language of this book. Without their solid work,
this book will have more errors than it does now.
Special thanks to Law Press China. Ms. Huang Linjia of the Law Press has made
a lot of solid efforts for the publication of this book in English and Chinese.
The authors are responsible for the improper statements in the book, and we
also look forward to getting corrections from readers. E-mails may be sent to
[email protected] for correspondence.

Zhipeng He
Lu Sun
Contents

1 Introduction: Meaning and Function of a Chinese Theory

of International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .... 1
1 The Aim of This Book . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .... 2
2 The Connotation and Significance of Chinese Theory
in International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .... 4
3 Different Views on Chinese Theory of International Law
and the Clarification of the Notion of International Law . . . . . .... 5
4 The Need to Construct a Chinese Theory of International Law .... 20
5 The Possibility of Forming a Chinese Theory of International
Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .... 28
2 Why a Chinese Theory of International Law Is Necessary . . ...... 37
1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...... 38
2 A Chinese Theory of International Law: Concept Definition ...... 40
3 The Logical Basis of the Formation of a Country’s Theory
of International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...... 55
4 Mutual-Construction of International Law and Chinese:
Historical Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...... 62
5 The Significance of Providing the Chinese Theory
of International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...... 66
6 An Examination of the Theoretical Form of Chinese
International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...... 70
7 Summary: Great Goals, Hard Work . . . . . . . . . . . . . . . . . . ...... 86
3 Formation of the Conception of International Law
in Contemporary China . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
1 Proposing of the Problem . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
2 From the Opium War to the Treaty of Shimonoseki:
The Humiliating Encounter Between Modern China
and International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96

vii
viii Contents

3 From the Reform of the Late Qing Dynasty to the Beiyang

Government: China’s Struggle in the International System . . . . . . . . 110
4 From the Abrogating Treaties Movement to the Creation
of the United Nations: China’s Active Participation
in International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
5 From the Chinese Civil War to the Cross-Strait Opposition:
The Marginal Mentality of Countries Outside the System . . . . . . . . 125
6 Reform and Opening up and Harmonious World: China Reverts
to the International System and Gradually Becomes Stronger . . . . . . 132
7 Summary and Outlook . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
4 Initiating International Law Principle Building in Practice . . . . . . . 143
1 Background and Process of the Five Principles . . . . . . . . . . . . . . . . 144
2 Why It Is China Who Proposes Peaceful Coexistence? . . . . . . . . . . 146
3 China’s Practices on International Law and International
Relations Ever Since . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
4 The Role of Principle of Coexistence in International
Relations Today . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
5 Observations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
5 Development of New China’s International Law Theory . . . . . . . . . 157
1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
2 The Formation and Connotation of the Diplomatic Principle
of Seeking Common Ground While Reserving Differences . . . . . . . 160
3 The Idea of Seeking Common Ground While Reserving
Differences and the Development of Chinese Theory
on International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
4 The Significance of the Diplomatic Concept of Seeking
Common Ground While Reserving Differences for China . . . . . . . . 175
5 The Notion of Seeking Common Ground While Reserving
Differences and the Road of Development of China’s
International Law Theory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
6 Summary and Enlightenment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190
6 The Cognitive Foundations for Chinese Theory of International
Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195
1 Proposition of the Problem . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195
2 The Theoretical Pedigree of International Law and the Standing
Basis of the Chinese Conception . . . . . . . . . . . . . . . . . . . . . . . . . . 197
3 The Pragmatic Dimension of the Chinese Conception
of International Law: Avoiding Being Blindly Optimistic . . . . . . . . 203
4 Observations: The Objective Dimension of the Chinese
Conception of International Law in Rejecting Nihilism . . . . . . . . . . 216
Contents ix

7 Chinese Conception About the Rule of Constitution

in International Relations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
1 Proposition of the Problem . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
2 Different Levels of the Rule of Constitution in International
Relations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227
3 The Analysis of the Value of the Rule of Constitution
in International Relations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234
4 Conditions of and Obstacles to the Rule of Constitution
in International Relations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238
5 Observations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245
8 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247
Chapter 1
Introduction: Meaning and Function
of a Chinese Theory of International Law

Although international law should be regarded as a public good for the whole world,
it bears the characteristics of national culture from the very beginning. The dialec-
tical evolution of international law shows that not only the theory of international
law with the characteristics of a certain state is possible and necessary; international
law per se with the characteristics of a certain state is also logically probable. If we
make an analysis on the historical development of international law, it is quite clear
that the legal norms dealing with international relations have distinct regional colors;
international law has always been pushed forward and influenced by the position of
nation-state. If we make a geographical observation, the fragmentation of interna-
tional law, the many conflict between international legal norms, and the primitive
status of international law also shows that the existence of international law is insep-
arable from the interests of the nation state, and the checks and balances of regional
cultures. Thus, the positions and theories of all nations on international law form the
basis for the healthy development of international law as a whole. With the trend of
international law of developing international organizations as well as constitutional-
ization in the contemporary world, especially with China’s rapid increasing position
in the international community, the political and economic impact of China is gradu-
ally strengthened, the Chinese discourse power of international law and the theory of
international law with Chinese characteristics become an objective need and subjec-
tive expectations. This is in contrast to the actual lack of theories of international law
in China. Up to now, China’s theory of international law has not yet formed its own
characteristics, and thus has not got sufficient status in the field of international law
academia and the system of China legal theory. China’s international lawyers need to
be mainstreamed in international law academia and the system of China legal theory
through their own efforts. In view of China’s accumulation of certain experience and
lessons through international legal practices, and formed its own research foundation
based on the accumulation of academic research, it is possible to construct the theory
of international law with distinctiveness of China, as well as to form international law
practice showing China’s clear position, through the conscious efforts of theoretical
community, especially by the systematic communication between theoretical and
practical community. To realize this goal, there is an urgent need in efforts in various
© Law Press China and Springer Nature Singapore Pte Ltd. 2020 1
Z. He and L. Sun, A Chinese Theory of International Law,
https://doi.org/10.1007/978-981-15-2882-8_1
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