I. New “Protectors” and New Pedagogy

It was only in 1904 that the Qing authorities ratified the Hague Conventions on the use of force and dispute settlement that they had signed after the Conference of 1899.Footnote ⁵ The delay was caused not only by the Boxer crisis, but also by official apprehension as to the wisdom of becoming voluntarily involved with still more Western legal institutions, unthreatening and “charitable” as these new rules might seem: previous experience had shown that treaty implementation could introduce unforeseen dangers. At the same time, and especially following the imposed Protocol of 1901, staying fully insulated from such new developments no longer seemed a feasible goal.

One direct result of the Boxer crisis was the prevailing sense that the Western role in China was less a form of mere unequal dealing than of outright domination. The appeal of Western pedagogy on political and legal matters was thus highly qualified, even as it finally obtained official sanction. As early as 1898, the missionary-educator W.A.P. Martin, who had helped to first introduce international law texts to China with his 1864 translation of Henry Wheaton's Elements of International Law, noted the growing influence Japan's example was starting to exert on reformist officials and intellectuals, including in the area of law.Footnote ⁶ By the next decade, nearly the entire former lexicon of international law in Chinese, initially coined primarily via Martin's translations, had been replaced with terms drawn from Japan.Footnote ⁷ Though the Japanese annexation of Taiwan and other territories following the conclusion of the First Sino-Japanese War in 1895 had provoked a sense of crisis among some officials and intellectuals, its most important immediate repercussions for the reception of public law ideas involved a growing conviction of the need to learn from Japan the conceptual frame it had so successfully adopted in the span of a few decades.

In particular, the term zhuquan [主權], for “sovereignty,” was now re-adapted into Qing politico-legal discourse with new Meiji-derived implications of full territorial control, aka Gebietshoheit.Footnote ⁸ The exact relationship between this reinvented classical Chinese term and alternative translations of “sovereignty” that emphasized a vague “independence” of states, e.g., zizhu zhi quan [自主之權] (“right of self-rule”), remained ambiguous. Dealings with Britain over Tibet between 1904 and 1906, however, helped to underscore for Qing officials the need to preserve the status of zhuquan,Footnote ⁹ and a similarly powerful message was sent by Russian-Japanese conflicts over Manchuria. Russia had sought to impose a formal hegemony over the zone in the wake of the Boxer conflict, and now a rising Japan sought the same. The Russo-Japanese War of 1904–5, with its clear victory for Japan, radically changed the regional balance of power, with legal repercussions.

However, this success could not fully override Japan's stated commitments to the multilateral principles of the Open Door policy of the United States, announced by President McKinley's Secretary of State John Hay in 1898: guaranteeing China's “territorial integrity” along with equal commercial opportunity for all foreign states. At the same time, Japanese officials saw major US figures, even President Roosevelt himself, as potentially supporting a kind of Asian Monroe Doctrine.Footnote ¹⁰ With the latter's interpretation of the original Doctrine as conferring an “international police power” to sanction any “[c]hronic wrongdoing, or [] impotence which results in a general loosening of the ties of civilized society” among states in the Western Hemisphere,Footnote ¹¹ any similar application to East Asia had clear implications for interventions in China. Other great powers had, indeed, already adopted similar approaches in advance of the collective Boxer intervention. The Anglo-German Yangtze Agreement of 1900, for example, had been key to ensuring cooperation in the joint occupation of China during the suppression of the Boxer movement. Like a Monroe-style arrangement, it had purported to preserve China's territorial integrity, but only on the basis of a framework of rules, and grounds for intervention, conferring agency on the “protecting” powers. While China was the object of that agreement, it was not admitted to it as a contracting partner nor able to exert influence as an interlocutor during its negotiation process.

Chinese leaders as prominent as Empress Dowager Cixi herself had praised the United States, in the person of Roosevelt's just-assassinated predecessor, as “profoundly just and faithful in diplomatic relations, helping to preserve us during [the Boxer] crisis.”Footnote ¹² However, that sense of reliance was increasingly in question. When John Hay issued Roosevelt's call in 1904 to convene another Hague Conference (delayed due to the Russo-Japanese War), the plan was met with wariness from numerous quarters, some Qing officials included. An attaché in Berlin, for example, reported to the court the “subtle views” of German Chancellor von Bülow, who praised the initiative while regretting that “in this world of fierce competition” little progress towards pacifism could be expected.Footnote ¹³ The Qing diplomat also noted that the United States’ own recent behavior in the Spanish-American War belied its claims to abhor imperialism.

Despite some trepidation over international law innovations emerging from the Anglo-American world, the Qing court encouraged participation in the Second Hague Conference, where, for the first time, it deployed a delegation including several officials with legal training and/or previous experience at international conferences. Attended by 44 states as compared with the first conference's 26, and now encompassing most of Latin America along with the independent states of the Middle East and East Asia, the 1907 Second Hague Conference clearly heralded “a new era in international relations.”Footnote ¹⁴ It was apparent that, as the German jurist Carl Schmitt would much later phrase it, “the atmosphere and ambience” of the Second Conference was no longer as “purely European” as the first: “those who ought to have been carried out the door now already stood before it.”Footnote ¹⁵ At the Hague, Qing delegates would play a significant role in confronting Eurocentrism, but also faced new prospects of formalized global hierarchy.

The leading Chinese delegate, Lu Zhengxiang [陸徵祥], was the most important individual in the formulation of Qing positions at the Hague as well as, later, in framing the resulting reflections on and initiatives regarding China's role in global legal order. Shortly before being elevated into this position, however, Lu had evidently lost all faith in the Qing regime. As of 1906, he had recently experienced the dismissive attitudes he faced as a subordinate attendee at the First Hague Conference in 1899, the execution of his former diplomatic mentor as a scapegoat for pro-Boxer officials in 1900, the Western occupation and the Boxer Protocol, and a variety of state and personal crises surrounding the Russo-Japanese conflicts fought in and over Chinese territory by two foreign great powers, with China a mere spectator. It was at this point that he, like other reformists and revolutionaries of “Young China,” symbolically cut off the queue imposed on all Han Chinese by the Manchus. In a sign of the times, his fellow Han diplomats abroad quietly tolerated this rebellious gesture.Footnote ¹⁶

Ironically, Lu was just then appointed as the Qing special envoy to the Netherlands and to the planned Second Hague Conference, thus being instantly elevated several grades in rank. He was recognized for his able performance in diplomatic settings, not least as to facility with the French and Russian languages, for which he had been praised by foreign officials.Footnote ¹⁷ However, he did not have a background in international law, except for limited exposure during his studies at Martin's academy for translators. Soon after gaining a role within the Qing foreign policy elite, Lu began to advocate for fostering a cadre of international law specialists able to engage with the West at the highest levels of legal discourse. As he suggested in a cable of 22 December 1906, it was imperative both to cultivate advanced students and to translate more works: “Given the present circumstances of our country, even if we master the study of international law, we may still be unable to make full use of it—let alone if we fail to master it.”Footnote ¹⁸

Lu also made specific suggestions as to the kinds of works that should be translated. As he informed his superiors at the Office of Foreign Affairs, “there are two great schools of thought on international law, one of which is represented by England and which places sea power over that of the land, the other of which is represented by Russia, Germany, and France, which emphasizes the land over the sea.”Footnote ¹⁹ In Lu's view, China as a great continental power with limited maritime activity was “aligned with the latter school.”Footnote ²⁰ While this was hardly a fully-formed intervention on the issue of framing a “Chinese” (or “Asian”) position on international law, it did reflect a nascent opinion as to the need for progress towards formulating such a position—and the experiences of the conference would do much to reaffirm Lu in this conviction.

II. China as A “Third-Class” State?

The Qing delegation to the Second Hague Conference comprised Lu Zhengxiang, along with Qian Xun [钱恂], the military delegate Colonel Ding Shiyuan [丁士源], and a team of others including, far in the background, the recent Yale graduate Wang Chonghui [王寵惠] who would later become China's first international judge.Footnote ²¹ Co-equal with Lu and at times acting as China's main representative was American diplomat and former Secretary of State John Watson Foster, who had previously engaged in several other international dealings in the service of the Qing government.Footnote ²² Also quietly in attendance was Foster's 19-year-old grandson John Foster Dulles,Footnote ²³ then a student at Princeton, who many years later would follow in his grandfather's footsteps as US Secretary of State, in his case during the high Cold War years of 1953–9.

For China, the climax of the Second Hague Conference was what became infamous as the “third-class state” incident of 1907, which, while generally forgotten in the Global North, was also a major episode in international legal history for a number of other then-marginalized states, including in particular those of Latin America.Footnote ²⁴ This imbroglio involved plans for the creation of a truly permanent international court, to supplement or replace the limited and voluntary arbitral jurisdiction of the 1899 Permanent Court of Arbitration (PCA). Though F.F. Martens himself raised this general suggestion in the early days of the Conference, it was not until August 1 that two separate plans, one American and one Russian, were formally shared with the various delegations.Footnote ²⁵ As a court of general jurisdiction over international disputes with a standing judiciary (unlike the PCA with its requirement of case-by-case consent and appointment of arbitrators by both parties) the “Court of Arbitral Justice,” as it was eventually dubbed, would have been a major step in the legalization of international relations. It also gave rise to heated contestation over the court's powers and how exactly its “global judiciary” would be constituted.

At the First Subcommission meeting of August 1, the American plan was announced by Joseph Choate and explained in detail by James Brown Scott, who suggested that the new court should have full jurisdiction over disputes referred to it by common agreement, for example, in multilateral treaties as well as on a voluntary basis. As to its judiciary, Scott declared his view that while all nations had an equal interest in justice, there was nonetheless “a great difference between nations considered from the standpoint of material interests”Footnote ²⁶ [emphasis added], and that the latter would be the only proper basis for deciding the composition of the Court. Population, alongside other factors, could be used as a proxy for each state's relevant “material interests”. Scott quoted Supreme Court Justice John Marshall for the statement that “No principle of general law is more universally acknowledged than the perfect equality of nations[,]” but argued that a Court consisting of 46 judges, one from each state at the Hague, would be “unwieldy.”Footnote ²⁷

At the same meeting, Martens provided perhaps the most stirring defense of the idea of a permanent international court—as he said, during the age of the Crusades, there had been the cry “To Jerusalem! God wills it!”, but since 1899 this had been replaced by the updated version: “To The Hague!”Footnote ²⁸ However, his proposal was somewhat less ambitious than that of the United States, building instead upon the existing PCA roster, which he argued should meet regularly to elect among themselves a standing tribunal to hear cases. Despite skepticism from many quarters over what Scott vaguely referred to as the “actual and natural principle” of population as the planned main factor for assigning judicial posts in the new tribunal, the full proposal that the United States unveiled on August 17, with the backing of Britain and Germany, did generally follow that approach—with the crucial caveat that the proper mode of calculation was “the population with the colonies,” ensuring the highest status for the great powers in the planned judicial panel of 16 or 17 members, of whom eight (those of the great powers) would sit permanently. The rest would rotate in terms of ten, four, or two years or, for the lowest-ranked group, a single year. China, despite being generally considered to have the largest population of any state in the world, found itself in the third class: able to appoint judges only for four years out of each 12-year rotation.Footnote ²⁹

In his Hague news diary, the peace activist and journalist William T. Stead, who less than a decade earlier had argued that China should be made a protectorate of a Western power or be managed by them jointly, now noted critically that “China, which had belonged to the major powers, [was now] relegated to the third tier.”Footnote ³⁰ At the August 17 meeting, even before the plan was formally announced, Lu Zhengxiang was the first delegate to speak, pointing out that the “principle of population” had clearly not been followed with respect to China.Footnote ³¹ Lu tactfully praised the “real forward step in the way of progress” that the push for a permanent court represented, connecting it to China's own “pacific spirit,” but argued that the distribution of judges was patently unfair. Instead, he suggested taking the existing dues paid to the PCA's International Bureau—a population-based measure by which the eight great powers would retain their position, while China would stand alongside them as an equal, and other low-ranked states would not—as the proper way to assign the maximum judicial terms.Footnote ³² This would, he said, “remov[e] all inequality in the distribution of the judges.”Footnote ³³

In messages to the Qing court, Lu expressed his view that what was at stake was not so much the judicial tribunal itself, but rather “all kinds of further potential losses in coming years” that could follow on from this new “plunge” in China's status.Footnote ³⁴ He continued to oppose the judicial-ranking proposal, though the most prominent opposition came from Latin American states. The Venezuelan delegates referred to the ranking scheme as “in evident contradiction with the principle of equal representation of States,” the Mexican delegation protested against it as “contrary to the equality of nations,” and Brazil's Ruy Barbosa referred to full equality as the “primordial condition for peace among nations.”Footnote ³⁵ It was Barbosa that most consistently, vociferously, and publicly opposed the ranking scheme, issuing repeated calls in strong language seeking, for example, to “reestablish equilibrium of justice between the weak and the strong.”Footnote ³⁶

On August 20, Barbosa supplemented his critiques with an alternative Brazilian plan for the proposed Court, which would allow all states to appoint a judge and have the panel hearing each particular matter be determined based on case-by-case selection.Footnote ³⁷ While this proposal did not win support, more and more states did continue to join in expressing their rejection of the “inequality” built into the US-UK-German proposal.Footnote ³⁸ China maintained its opposition while Barbosa repeatedly invoked equality and the delegates of Persia, Mexico, and Romania amongst others gradually expressed similar views. By September 18, the court plan for a rotating judiciary was abandoned, not without acrimonious scenes between Barbosa and the United States delegates.Footnote ³⁹ “Joseph Choate, of U.S., Beaten at Hague by Brazil Delegate in Hot Word Duel,” newspapers reported shortly afterwards.Footnote ⁴⁰ Not deterred by criticism from some of the great power delegates, including Choate's statement that “he bores me so,” Barbosa delivered an address on October 9 on “The Equality of Sovereign States,” reinforcing his firm position.Footnote ⁴¹

Meanwhile, before and alongside the contentious plans for the Court of Arbitral Justice, another new judicial institution was also being planned. The latter was far more specific in its aims than the arbitration court, but just as (or, in a certain sense, even more) ambitious, and raised some of the same issues. It would act as a compulsory court of final jurisdiction over all matters connected with the law of maritime “prizes,” or capture of ships and property during naval warfare. This court plan, too, divided member states up into categories, in this case, based on the size of their merchant fleets and (especially) naval forces, and again put China in a “third-class” position.Footnote ⁴² There could hardly be a more literal illustration of the idea that “sea power” (as 1899 Hague delegate Alfred Thayer Mahan had phrased it),Footnote ⁴³ or the lack of it, decided a state's relative status in the increasingly Anglo-American-dominated international order.

Two plans for a permanent International Prize Court had initially been deposited by Germany and Britain, respectively, at the meeting of the Conference's First Commission on June 22. These two proposals differed especially in respect of the adjudicatory mechanism. Where the German plan would provide for each party to a naval prize dispute to select arbitrators after the fashion of the PCA,Footnote ⁴⁴ it was the British version that called for creation of a permanent judicial body—one that if created would be the first-ever “international court” (few expected the more grandly-conceived and contentious general jurisdiction court plan to precede the prize-specific court).Footnote ⁴⁵ The eighty-year-old British lead delegate Edward Fry, who was a highly-respected former judge and had served alongside F.F. Martens on the panel of the very first PCA arbitration in 1902,Footnote ⁴⁶ explained the ambitious new plan and its ramifications:

The question as to what exactly constituted the “veritable international law” would seem to be obviously a matter admitting differences of opinion. For Fry and the other British delegates, however, it was an operating assumption that there was some universally correct standard for adjudicating naval prize disputes. The problem at hand was just ensuring that this standard could be elaborated and applied. Against early objections of the French delegate Louis Renault that “you could have no Court until you had a code of law to administer,”Footnote ⁴⁸ Fry insisted that, after the fashion of the common law, the Court itself would make any legal norms that it might find lacking. Like many diplomats and international law scholars before his time and after, Fry was “struck by the greatness of the idea of really constituting a Court above all national courts, thus making a great stride forward in the conquest of law over force.”Footnote ⁴⁹

Conveniently, this noble internationalist idea would also work out to serve Great Britain's parochial national interests. Creating a new body to handle naval prize disputes was “a most important matter to England, seeing how ill our ships had fared in the Courts of Russia and Japan.”Footnote ⁵⁰ Fry's fellow Hague delegate Ernest Satow—who had been Consul General of the British occupying force at Tianjin during the Boxer intervention and until the previous year had represented Britain in attempts to force Qing acceptance of mere “suzerain” status over TibetFootnote ⁵¹—wrote that on the prize court and related issues, “Edward Fry took a leading part, as became the First Plenipotentiary of a Great Power, and as befitted his eminence as an authority on law.”Footnote ⁵²

As to the protests of Brazil and other states over the inequality of judicial terms in the ranking plan, Fry wrote dismissively that some of them “were more anxious to put their existence and their greatness in evidence before the world than influenced by any motives of wide philanthropy … To meet in the eyes of the world on equal terms with the greatest nations of the earth flattered their self-esteem.”Footnote ⁵³ That the people of these states might have sought existential security by influencing the international legal rules that bound them (and that had made them subject to such severe sanctions as China experienced in 1900–1, or as Venezuela had narrowly avoided in 1903) does not seem to have crossed the mind of the Quaker veteran diplomat. Meanwhile, there were also limits to the solidarity among the marginalized states themselves: just as Lu Zhengxiang had advanced a proposal for judicial spots on the Court of Arbitral Justice that would rank China among the great powers but not grant the same promotion to any other states, Barbosa on August 22 submitted his own suggestion that Brazil's large merchant fleet should entitle it to a first rank position, and specifically pointed out that Brazil should outrank China, as well as other states lacking large merchant marines.Footnote ⁵⁴

Nonetheless, there was cooperation among the various marginalized states when it came to voting—with the low-ranked powers issuing reservations over the Prize Court's crucial article on judicial staffing—and some degree of ideological solidarity also developed over the course of the events. In his own telegrams home to the Brazilian government, Barbosa notes, for example, on August 7 that some of his country's “friends,” including China, had passed on word about the judicial-ranking scheme in advance of its public release; later, on the 24^th, he mentions a conversation with the Chinese “ambassador” (presumably Lu) in which the latter supported his stance on sovereign equality.Footnote ⁵⁵ In Lu's own later comments to the Qing court, he mentioned Barbosa as an inspiration and also tied the latter's example to China's urgent need to reform its domestic law and politics and improve its standing in the world:

III. Encountering The Limits of International Law Reform

The judicial ranking schemes raised at the Second Hague Conference both failed, though in the case of the Naval Prize Court this was only due to a reservation by the offended states that could, perhaps, be circumvented by the great powers should they choose to do so. Indeed, that was precisely the course of action that the powerful states embarked on soon afterward. In the follow-up conference held at London in 1908–9, which revived the prize court project, most of the lesser powers, including China, were simply not invited in the first place and thus could offer no resistance.Footnote ⁵⁷

Both Anglo-American and some Continental jurists remained highly enthused about the Naval Prize Court project. The pacifist international law scholar Hans Wehberg, for example, would later say that the prize court was “much nearer to the ideal of an international judicial court” than the plans for the Court of Arbitral Justice, both because of its compulsory character and because it had been intended not only to settle disputes but also “develop international law by its judicial decisions,” and lead to “the organization of an international judiciary.”Footnote ⁵⁸ Articulating the more conservative view then more prevalent on the Continent, Berlin law professor Franz von Liszt, however, felt that “the establishment of a permanent court of justice having jurisdiction independently of the consent of the parties involves an encroachment upon the sovereignty of states, and consequently an alteration of the foundations of international law.”Footnote ⁵⁹

The leading advocates of the scheme, of course, sought precisely such an alteration. Even after the opposition from various quarters Fry had still declared at the close of the conference that “of all the projects we have adopted, the most remarkable in my opinion is that of the Prize Court, for it is the first time in the history of the world that one organizes a truly international Court.”Footnote ⁶⁰ This would, he predicted, make a “system of truly international laws” out of the present mere “chaos of opinions,” constituting the field.Footnote ⁶¹

For court advocates, the resistance of dissenters could be portrayed as mere crude nationalism, or in any case as backward defenses of “chaos” over “progress.” Despite occasional favorable commentary on Barbosa's eloquent appeals, public opinion in the West was not often on the side of the weaker powers. The Times of London, for example, published on September 14 a critical account of the Prize Court resistance that openly rejected the principles of equal representation and consensus: “By a diplomatic fiction, China, Persia, and Turkey are supposed to stand upon the same plane of cultivation as the nations of the West[.]”Footnote ⁶²

Marginalized and especially non-Western states, it was clear, could in the eyes of most Western commentators act as either obedient cooperators or as agents of “chaos.” The idea that they could originate international law proposals was hardly envisioned. Nor were such attempts seriously engaged with when they were initiated. Chinese delegates experienced their marginalized status at the Hague in this regard as well. One incident that takes on stark resonance in light of (much) later developments in international law was Western delegations’ rejection of a suggestion by the Qing military delegate Ding Shiyuan to draft a legal definition of “war”. Ding, one of the first Qing officials with legal training from the British Inns of Court, raised this issue on July 12 in response to a French proposal on rules for the formal declarations of war, arguing:

The official records of the conference proceedings give no indication as to how Ding's intervention was received, skipping over the response by other delegates. However, the memoirs of John Watson Foster provide additional detail. He notes that “[t]he military delegate of China established a great reputation as a wit, notwithstanding he was one of the most serious-minded of the members and never consciously attempted a joke.”Footnote ⁶⁴ The way that Ding achieved this “reputation as a wit,” Foster writes, was simply by making his suggestion that war should be defined, on July 12 as well as on another occasion during the conference. As Foster recalls:

Thus, while Ding had obviously intended a very serious intervention regarding the legal definition of “war”—bringing the point up on two separate occasions during the discussions—this attempt was literally laughed out of the proceedings by the assembled Western delegates. Ding was, however, ahead of his time. The idea of delegitimizing uses of force constituting unilateral aggression would be taken up after the First World War, continued through the Kellogg-Briand Pact and, decades later, incorporated into the United Nations Charter as a core provision. Meanwhile, the project of providing an exact legal definition of aggression would finally be taken up at the United Nations General Assembly via Resolution 3314, adopted on 14 December 1974.Footnote ⁶⁶ Though Ding's brief intervention certainly involved no such detailed proposals, he clearly suggested the need to both define and limit states’ recourse to uses of force, and to legislate global ius ad bellum norms. His remarks were also closely related to the views being advanced by some Latin American delegates, including Argentine Foreign Affairs Minister Luis María Drago, who had since 1902 advanced the “Drago Doctrine” that military force could not be used to collect state debts. A weakened version of this rule was adopted by a number of states in 1907, albeit with ambiguity as to its scope.Footnote ⁶⁷

Closer to the vein of Ding's comments, though, was the intervention of Santiago Perez Triana, appearing for both Colombia and El Salvador, who had with the other Colombian delegates floated a proposal earlier in July for an agreement stipulating that:

This strong condemnation of all wars undertaken without good faith efforts at peaceful dispute resolution, and attempt to impose real financial sanctions on those waging such wars, never saw the light of day in the formal conference proceedings, undoubtedly because of a lack of potential support. Indeed, even among Latin American delegates, there were sharp divisions over matters regarding the use of force, with Barbosa, for example, rejecting the Drago Doctrine as in reality permitting an “abuse of sovereignty” in the form of bad faith contracting, and, in his reports home, criticizing the “ridiculous panegyric” of Perez Triana in Stead's news journal.Footnote ⁶⁹ It is curious, nonetheless, that the strikingly-worded, legally sophisticated, and innovative Colombian proposal was not even mentioned in James Brown Scott's or other leading memoirs of the event. Ding's subsequent, less fully-developed comments about providing “war” with a clear legal definition undoubtedly would have gone similarly unmentioned afterwards—had they not been recorded as “humorous” incidents.

For their parts, both Foster and James Brown Scott, who also recorded the Great Power delegates’ laughter at Ding's serious suggestion, seemed to feel the exchange reflected poorly on the West.Footnote ⁷⁰ At a different session around the same time, however, Foster took it upon himself to issue on China's behalf “a remarkable appeal in favor of the neutrality of the high sea,”Footnote ⁷¹ including the claim (after minimal consultation with the other delegates) that China's “government would rejoice from any proposition that could give more freedom to free trade.”Footnote ⁷² As had often been the case since the 1860s, acceptance of China as an equal member of the international community was premised upon issuing, in its name and even as a form of outright ventriloquism, an endorsement of unrestricted commerce heavily weighted towards Western interests. By late summer, Foster had been compelled to leave before the conclusion of the Conference, though seemingly still on amicable terms.

Questions of equal status for marginalized peoples and nations also figured in another mid-July incident that, though occurring on the sidelines, was perhaps the most dramatic event of the Conference. This was the attempt of an unofficial delegation from Korea—then being treated as a Japanese “protectorate”—to attend on an equal basis with the other invited states. Japan had used the unofficial norm of “blackballing” unwanted weak states (which Italy had previously used with regards to the Vatican in 1899) in order to ensure no independent voice for the Koreans. When a small group consisting of Yi Jun (이준, 李儁), Yi Sang-seol (이상설, 李相卨) and Yi Ui-jong (이위종, 李瑋鐘) arrived and sought out meetings with those present, they garnered no official acceptance but did create something of a media stir, especially when Yi Jun died at the Hague, in what was taken for an act of protest by suicide. Stead's Courrier and other more mainstream publications all reported with sympathy for the Koreans’ plight.Footnote ⁷³

The Qing delegates, too, paid careful attention to the situation of Korea and made lengthy reports on the subject to the Court.Footnote ⁷⁴ The radical loss of autonomy on display was another sign of what could happen to states that failed to achieve parity with the Great Powers. As Lu Zhengxiang reported back to the court in cynical terms, the gradually progressing annexation of Korea by the Japanese Empire, like the recent British conquest of South Africa, and the de facto recognition of these steps by the other great powers was a sign that “there are no public principles in the world, only power” [Tianxia shi zhi you qiang quan, ben wu gongli 天下事只有強權, 本無公理]. Korea, after all, was hardly like the Congo region, which had had “no ruler” before Belgium was entrusted with temporary authority over it (sic), yet it had now met the same fate with the approval of the West's leading public lawyers.Footnote ⁷⁵

Yet another issue implicating questions of equality in international legal order was that of extraterritorial consular jurisdiction. This topic was actually not raised by any of the countries that were still subject to this institution (or by Japan, which had only recently overcome it), but rather by Britain, which sought to include an article, 16 l, that would exempt consular jurisdictional matters from a proposed agreement on obligatory arbitration.Footnote ⁷⁶ In some of the final meetings of the Conference, the inclusion of this article was bitterly opposed by the delegates of states that had been forced to provide extraterritorial jurisdiction to Western powers.

When the vote on Article 16 l came up on October 7, the Persian delegate Samad Khan Momtaz os-Saltaneh protested this move to compromise the convention by denying equal justice to all parties.Footnote ⁷⁷ Following this, the international lawyer Corragioni d'Orelli, who had been appointed to represent Siam, stated agreement on the latter's behalf. Lu Zhengxiang then spoke, in his most elevated rhetoric at either Hague Conference, calling for the elimination of Article 16 l and “ask[ing] of the Commission to perform before this altar of the God of Right and of Justice … an act of international equity and justice, by eliminating this article which, according to our point of view, contains a striking inequality.”Footnote ⁷⁸ When it came to a vote, the article retained support from Britain and France, but was opposed by 36 states, including all in attendance except for Greece, Portugal, Sweden, Switzerland, and Japan (which had abolished foreign consular jurisdiction in its own territory but now had such arrangements in place for its own citizens in China).

IV. Two Ideas of Equality in International Law

All of these vivid lessons in power politics and hierarchy at the Hague prompted powerful protests to the Qing court from officials decrying the slow pace of constitutional reforms. On 22 September 1907, all of China's leading diplomats in Europe issued a joint memorial to the Qing court seizing upon the “third-class state” incident to call for “enlightened law reform in order to preserve sovereignty.”Footnote ⁷⁹ As Lu simultaneously argued in his own personal reports to the throne, the diplomatic corps now jointly emphasized that it was “necessary to immediately implement major legal reforms, or else we do not know what sort of treatment we will be accorded at the Third Hague Conference.”Footnote ⁸⁰

Similar views were reflected in another joint memorial that December, this time by the domestic legal reform ministers, that suggested to the Foreign Affairs Office (and thus, indirectly, to the court) the need to further combine Chinese diplomatic efforts with the project of dynastic reconstruction. Thus, they noted, “although laws are a matter of internal policy, in reality they are bound up intimately with international relations.”Footnote ⁸¹ This international dimension was “all the more significant for the current legal revisions, which have as their great purpose the recovery of domestic legal jurisdiction and police powers from the Westerners.”Footnote ⁸² It had already been argued by reformists that domestic law was tied to China's status in world affairs, but the Second Hague Conference had shown such status could directly depend upon foreign views of China's legal system: “The various countries pay close attention as to whether or not the steps we take conform to the public principles of the world [世界公理].”Footnote ⁸³

Although, as Lu had earlier lamented, the “public principles” of international law might often just be a cover for Realpolitik, diplomats thus still saw as potentially significant foreign perceptions of a state as conforming to or violating such principles. The steps advocated by the Qing diplomatic corps, along with revision of the laws themselves, included sending more students abroad to learn public law, building relations with other “small states” like those of Latin America, and also inviting more foreign scholars to help plan China's future reforms. With the Qing court's approval of these moves, the project of constitutional monarchical reform was subsequently rapidly accelerated.

While it is certainly the case that the most significant impact on Chinese law from the Second Hague Conference was acceleration of domestic constitutional reform, another element involved exploring the sort of aims that, viewed today retrospectively, could be characterized as “Third World” organization. Lu Zhengxiang actually emphasized this aspect in his early 1908 memorial to Emperor Guangxu. After referring again to domestic constitutional matters, Lu returned to the topic of extraterritorial jurisdiction, and the common front that had been developed among Asian attendees at the conference (besides Japan). This led him to point out how:

One of the key lessons Lu derived from his experiences at the Hague was that it would be necessary to take action towards further developing this sort of “Asian faction” (a term also translatable as “Asian school”) in international law settings. However, there would be little concrete progress in this effort before the fall of the Qing Dynasty four years later. In the ensuing “warlord” era, meanwhile, ideas of pan-Asian solidarity would most often become associated with imperial Japanese messaging in favor of Monroe-ist protectorates over China and the region.

By contrast, the aim of claiming an equal voice and position in international law on the basis of national sovereignty remained consistent in official Chinese positions across various regimes after 1908. This idea also continued to become ever more significant in nascent approaches to international law elsewhere across what would later be called the Third World.Footnote ⁸⁵ Based on a close reading of the events of 1907, it appears a shared aim among marginalized states of “decolonizing” international law could have taken hold much earlier than is usually assumed to be the case. That such an aim failed until much later to turn into a concrete form of multilateral organization in Asia, as it was beginning to in the Americas, may be more due to factors of contingency—not least the cancellation of the Third Hague Conference due to the outbreak of world war and the turn towards formal international organization with the League of Nations system—than to any inherent structural logic in the progress of international legal history.Footnote ⁸⁶

At the time, meanwhile, the Latin-Asian resistance on the basis of equal sovereignty had very different impacts in the West. Public and juristic opinion was as noted by no means generally on the side of China or other marginalized “weak” states in their demands for juridical equality, whether in terms of the court plans or extraterritorial jurisdiction. However, the “problem of equality” did become a topic of discussion for some leading jurists in the immediate wake of the Conference.Footnote ⁸⁷ There was no immediate consensus, though, as to whether the marginalized states had been right to insist upon equality as the “primordial condition” for peace and law in international relations. Did state sovereignty, per se, imply the right to equal agency in legislating new global norms?

A particularly strong advocate in favor of this view that now emerged was the Swiss jurist and diplomat Max Huber, who had been Switzerland's delegate to the 1907 Conference. In his 1909 essay on “The Equality of States” (Die Gleichheit der Staaten), Huber turned to the example of the world court debacle at the 1907 Second Hague Conference to make a broader conceptual point.Footnote ⁸⁸ He opposed views like those of the Institut de Droit International member Thomas Joseph Lawrence, who considered the weaker states’ positions in 1907 as symptoms of a “fetish of absolute equality.”Footnote ⁸⁹ Rather, Huber thought it only natural that weaker states had resisted any attempt by the Great Powers to formalize their status, and regrettable that should mean a rejection of progressive international law development in general. Far better would be to field proposals acceptable to both great and small states, for no advancement could come from “attempts to set up norms and to introduce institutions that are unacceptable … [either due to] restriction of the large states by the majority of the small states or the subordination of the latter to the great powers.”Footnote ⁹⁰

This view might mean a more modest role for international law than that envisioned in terms of new global courts and other such institutions. But the move to such institutionalization itself could also easily resurrect the “hegemonic” character and ideas of the 19^th century Pentarchy. The “non-great powers,” China included, “could not be reproached for basing their perspective on the [notion of] equality underlying the community principle, which is the palladium of their independence.” Moreover, international law could “still develop a great deal on the basis of mere community and equality,” provided there was a situation of mutual trust.Footnote ⁹¹

Huber did not in this essay explicitly call for China to be considered part of the civilized family of nations. However, he did so the following year in another essay, where he also explicitly tied this status to the issue of consular jurisdiction. Following Japan's entry into the community of international law (Völkerrechstgemeinschaft), Huber argued, the “old concept of pays hors Chrétienté” had become “meaningless.” China, Siam, and many Muslim states were now also in such close contact with the rest of the world that they should be counted as true members of the global legal community. Only for “a few states such as Abyssinia, Morocco, Liberia and Afghanistan,” Huber thought, could membership in the Völkerrechtsgemeinschaft still be unclear. For the other non-Western states still currently subjected to consular jurisdiction, such hierarchical regimes had to be regarded as clashing with their just claims to equal status.Footnote ⁹²

Despite his continued use of the “community of international law” and civilizational / ethical heuristic, then, Huber sought to increase its inclusivity to encompass more than just the sole exception of Japan. In his correspondence with Swiss officials over diplomatic questions, as well, Huber referred to both the “principle” and the “problem of equality” (Gleichheitsprinzip; Gleichheitsproblem) as being critical if future international law conferences were to achieve any better outcomes than had the Second Hague Conference.Footnote ⁹³ Nor was Huber entirely alone in taking up this point of view. At the annual Lake Mohonk Conference on International Arbitration, for example, advocates of pacifism and international law not infrequently called for more inclusive approaches to China, and criticized excessive interventionism. At times, this even extended to recognizing China's and other weak states’ rights to more equal representation in newly-envisioned institutions like the planned world court.Footnote ⁹⁴ But, as had been the case in earlier decades, speakers in these very same pacifist venues could also just as easily refer to acts such as the post-Boxer intervention and occupation as an example of the kinds of “international action[s] which must grow as intercourse increases.”Footnote ⁹⁵

Despite Huber's emerging notions about the Gleichheitsproblem, few others in the global international law profession or diplomatic communities were then advocating such strong views. Indeed, even China's own diplomats abroad were not yet consistent vocal defenders of this principle. When Qing envoy to the United States Wu Tingfang appeared at the 1909 Mohonk Conference, for instance, he issued a strong appeal for compulsory arbitration in advance of an eventual “international court of justice,” but said not a word (at least, in his published remarks) about the issue of equal status in judicial appointments.Footnote ⁹⁶ As China's sole PCA arbitrator, his words on the subject might have carried particular weight; it is likely, though, that he sought to avoid controversy that might arise from directly contradicting the official positions of the United States.

Nor did the United States government under either Roosevelt or his successor Howard Taft make China's “equality” as a matter of international legal status a priority in the same way it emphasized China's de jure territorial integrity as well as the commercial “equality” of foreign states and merchants in that protected space. At a public event commemorating Ulysses S. Grant in May 1910, for example, Taft noted that the United States welcomed the “friendly reliance” of China and looked forward to fostering the investment of American capital, including via railway loans, but that it would in turn require China to engage in currency reforms and to abolish the internal likin taxes that “weigh[] against our trade.”Footnote ⁹⁷ Noting that America's foreign trade in general now surpassed 2 billion dollars annually, Taft said that the “State Department could not … justify a[ny] policy which would in any way withhold a fostering, protecting, and stimulating hand in the development and extension of that trade.”Footnote ⁹⁸

Taft concluded his remarks on U.S. foreign policy with an endorsement of both the Prize Court and Court of Arbitral Justice plans that the U.S. had put forward at the Hague, and specifically for eventually “evolving” a version of the latter out of the former. The embrace of the envisioned great power court did not, however, deter Taft from also endorsing unilateral sanctions and interventions against Latin American states with “tyrannical and unprincipled” leaders, such as Nicaragua and Venezuela.Footnote ⁹⁹ In a similar vein was an address to the American Society of International Law (ASIL) in 1910, in which Elihu Root reaffirmed that with respect to “governments whose control is inadequate for the preservation of order,” it was now an “international custom for the countries having the power to intervene directly for the protection of their own citizens, as in the case of the Boxer Rebellion in China.”Footnote ¹⁰⁰ This “custom” applicable to both China and Latin America was to be considered valid, even though, admittedly, as an “impeachment of the effective sovereignty” of the targeted state, intervention “leads to many abuses.”Footnote ¹⁰¹ As to extraterritorial consular jurisdiction, too, affected states “must be content to stand in an intermediate position between those incapable of maintaining order, and those which conform fully to the international standard.”Footnote ¹⁰²

With these various hierarchical and asymmetrical elements very much included, the American principle of the Open Door continued to play a dominant role in both the geopolitical and international juristic imagination regarding China and its territory in the years after the Second Hague Conference. In one significant example, International Law Association member, Oxford academic, and Liberal politician Sir Thomas Barclay, for example, included in his expansive 1907 treatise Problems of International Practice and Diplomacy a “Draft Convention for Establishing a League for the Preservation of the Status Quo and the ‘Open Door.’”Footnote ¹⁰³ Barclay's proposal would have meant almost the opposite of Lu and his fellow officials’ aspirations for the forthcoming Third Hague Conference; rather than conferring greater sovereign agency on China, this Draft Convention would have meant an entrenched and formalized globalization of the law and political economy framework established via the Boxer intervention and Protocol.

Barclay sought to have great powers mutually guarantee in all of their colonies, protectorates, and even mere “spheres of influence” the same rules of “equal” commercial access and basic maintaining of the territorial status quo as had been explicitly applied to China through the development of the Open Door policy since 1898. In his Draft Convention, Barclay thus included the provisions that:

Meanwhile, not only were disputes between parties to this Draft Convention to be subjected to compulsory arbitration, but “all matters relating to [it]” were to be “centralised at the offices of the Permanent Administrative Council of the Hague Court.”Footnote ¹⁰⁵ Though never realized, Barclay's 1907 proposal reflects the great significance that many international jurists attached to the Open Door system and the “principles of equality” it was based on (so different from and perhaps incompatible with Barbosa's “primordial condition” or Huber's Gleichheitsprinzip). For Barclay and other prominent commentators on international law, the “community of interests” that was the rational basis for states’ mutual legal obligations was still best expressed by the shared interest of Westerners in expanding their trade and civilization into non-Western spaces. This was neither the first nor the last time that an ambitious scheme of “global cooperation” was drawn up against the ostensibly blank canvas of China's internationally-regulated territory without any local involvement. After 1907, however, such plans would confront local projects that also made use of the conceptual toolkit of international law, aimed at preserving sovereignty for successive Chinese regimes over the full extent of Qing territory, and linking that “sovereignty” to agency within global norms and institutions.

When the Permanent Court of International Justice (PCIJ) was established in 1922, with the 1907 Hague attendee Wang Chonghui appointed as a deputy judge, he took his seat alongside more than half a dozen other representatives of “minor” (European or Latin American) states, who actually outnumbered the appointees of the great powers.Footnote ¹⁰⁶ On the other hand, this more equal arrangement hardly turned the PCIJ into a vehicle for the radical adjustment of existing legal arrangements (including those of the 1901 Boxer Protocol) that many in China, including Wang himself, still viewed as deeply unjust.Footnote ¹⁰⁷ Those more radical changes would later come via war and revolution, not conferences.