Negotiating Sovereignties
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Negotiating Sovereignties
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Legal Order from Disorder: The Chinese Maritime Customs Service

The Chinese Maritime Customs Service (CMCS) was born of legal disorder. Coming into existence in the aftermath of both domestic rebellions and foreign invasions, it was deeply involved in the legal transformation of the late Qing dynasty and played a significant role in the construction of a legal order.

How did a (seemingly foreign-led) customs service become a driving force in the legal transformation of late Qing China? In Chinese legal history, the CMCS exemplifies a legal transformation in the late Qing dynasty that was not state-centric. Nominally, it was an executive branch of China’s government, but counterintuitively, it was more of an international institution, with most of its senior officials being foreigners. Its unique nature stemmed from the semi-colonial and semi-feudal context of modern China that facilitated its emergence.

Initially, it was a makeshift solution devised by the consuls of Britain, America, and France to restore the foreign trade order in Shanghai in 1854. After the signing of the Treaty of Tianjin, the Self-Strengthening Movement witnessed the establishment of a “synarchy framework”. In this context, the CMCS gradually evolved into one of the most critical bureaucracies of China by serving as the bridge between Britain’s pursuit of free trade and hegemony and China’s goal of maintaining sovereignty, independence, and modern transformation.

The embodiment of tertius gaudens: Sir Robert Hart, 1st Bt (1835-1911), Inspector-General of Customs in China, caricatured in Vanity Fair, 1894. Source: Julius Mendes Price, Public domain, via Wikimedia Commons.

Under the leadership of Inspector General Robert Hart, the CMCS established itself as a neutral intermediary between the Qing government and Western powers. It functioned as a de facto tertius gaudens – a third party that strategically positioned itself to benefit from the interactions and tensions between the two sides. Through this, it was able to gain a high degree of independence and exert considerable influence over China’s modernization. This happened partly because of its crucial position for both China and the West, and also due to its hard work to establish authority.

Specifically, to support its objectives of preservation and expansion, the CMCS introduced an international legal order externally and established a systematic legal framework internally, deeply intertwining its operations with the broader legal transformation of the late Qing period.

The Introduction of an International Legal Order

The CMCS introduced Western international law into China to shape its external legal order, setting the course of China’s “entrance into the family of nations”, in Immanuel C.Y. Hsu’s words.1 The process began with the translation of international laws and legal education sponsored by the CMCS. Henry Wheaton’s Elements of International Law, translated into Chinese by W. A. P. Martin, brought basic principles, ideas, and concepts of modern international law to China. At the same time, the founding of Tongwenguan, a government school for teaching Western languages and science, in 1862 signaled the start of a new chapter in education on public international law in China.

Wheaton’s ideas take on a Chinese form: Bankoku kouhou (Elements of International Law). Source: w:ja:User:Dokutou, Public domain, via Wikimedia Commons.

The development would not have been so smooth without Hart’s help and encouragement. The Inspector General had such strong ties with the school that Martin himself called him the “father” of Tongwenguan. His support for public law education was evident in his appointment of Martin as the first professor of public law in China, the establishment of public law courses, and the popularization of public law education. Some of the foreign professors employed by Tongwenguan even came from the CMCS, such as Commissioners Morse, Oliver, and Piry.

The diverse faculty outside Tongwenguan. Source: Not identified, Public domain, via Wikimedia Commons.

In diplomacy, the CMCS played an active role in Sino-foreign negotiations, so that “in all international questions, from negotiating a treaty to settling a land dispute, the Zongli Yamen in those days of inexperience had constant resort to the advice and help of the Inspector General at Peking”. Even in the local treaty ports, “viceroys, governors and taotais constantly consulted and acted in conformity with the advice of the commissioner”.2

Hart was acutely aware that the fate of the CMCS was tied to the Sino-foreign treaties. The CMCS was directly or indirectly involved in negotiating more than 60 Chinese-foreign treaties and agreements, both bilateral and multilateral, some concerning sovereignty and some focusing on specific issues. In effect, it served as a buffer against direct confrontation between China and the West, preventing the immediate collapse of the late Qing regime and thus sustaining the legitimacy of its existence.

The Making of a “Panopticon”

To regulate the service efficiently and make it competitive, Hart established modern and centralized bureaucratic governance by means of a customs law system. As Hans van de Ven concluded, “Hart turned the CMCS into a Foucauldian panopticon, not inappropriately, given Hart’s utilitarian instincts, by turning the Inspectorate General, its headquarters, into a monitoring center from which he supervised, managed, coordinated, and controlled the Service’s Custom Houses”.3

The internal legal order can be understood as two aspects: the fixed customs laws, including treaties, quasi-treaties, and other rules and regulations, and the flowing institutionalized instruments, with circulars of the Inspector General as their core.

The former provided the basic structure for the customs law order by serving as the legal origin of the CMCS. For example, the Rules of Trade Appended to the Treaty of Tianjin provided the treaty base for the foreigners managing customs in China. On this foundation, the Foreign Inspectors and the Board of Inspectors in Shanghai were developed into the Foreign Commissioners and expanded in each treaty port. The subsequent decades witnessed the consolidation and expansion of their rights and powers by successive unequal treaties. Besides, Hart engaged in the signing of specialized regulations and rules that enjoyed the status of quasi-treaties, like the Yangtze Regulation, Pilotage Regulations, Rules for Joint-Investigation in Cases of Confiscation and Fine by the Custom House Authorities, and others.

The essence of institutionalization: Inspector General’s Circulars: Official Circulars Classmark: 679 (1); Call number: 26890. The Second Historical Archives of China.

In addition, Hart wove a net of institutionalized instruments including circulars, dispatches, semi-official correspondences, and various other formats. Among them, the Inspector General’s circulars were the most universal official documents, issued to each local Commissioner for compliance, and highlighting the diversity and flexibility of the CMCS’s internal administration. These normative instruments had their own formats and functions, distinguishing the service from other Chinese government branches. The regular flow of these instruments brought orders – Hart’s will – into every corner of the service, making it a centralized and vertical management hierarchy. Notably, such a highly law-based customs operation system was unique within the Qing bureaucracy at the time and became a model for later administrative reforms.

The “Reason of CMCS”

To explain why the CMCS played such a central role in legal transformation during the late Qing period, I have introduced the concept of the “reason of CMCS”. This refers to the underlying rationale or driving force behind its actions and evolution. It helps make sense of its preservation and expansion, as well as its pursuit of autonomy and independence. Hart made great efforts that point to the ultimate goal of valuing the well-being of the organization and its members, such as shaping a cohesive and proud identity of customs staff, sidelining the authority of the Chinese superintendents, and resisting intervention in customs affairs by the British authorities as their core.

The “reason of CMCS” could serve as a theoretical tool to understand the various roles it played – as China’s representative, mediator, and backstage conductor, as diplomatic advisor to the Qing court and as accessory to the invasions of Western powers, as executant and beneficiary of Sino-foreign negotiations and as translator for the Chinese party. By its nature, the CMCS was an intermediate force operating in a “contact zone” against a semi-colonial backdrop. Only by focusing on the service itself can we move beyond a state-centric perspective that either makes it purely an advanced force for modernizing China or merely an instrument of imperialist aggression against China.

The CMCS emerged between a faltering Qing court and an overstretched British empire when the old, traditional legal order was collapsing, and the transition to a new legal order was beginning. The making of its external and internal legal order was the manifestation of the “reason of CMCS” and deeply affected the legal transformation of late Qing China. Externally, the international legal order was introduced into China by means of translation, education, and Sino-foreign negotiations, while internally, a rigorous and modern customs law system was constructed and became the template for the government’s institutional and legal reforms. The story of the CMCS challenges a linear narrative of state-driven legal transformation in modern China and offers a new perspective on the emergence of sovereignty in late Qing China.

  1. See Immanuel C.Y. Hsu, China’s Entrance into the Family of Nations (Harvard University Press, 1960). ↩︎
  2. H. B. Morse, The International Relations of the Chinese Empire III (Longmans, Green & Co, 1918), 390. ↩︎
  3. Hans Van de Ven, Breaking with the Past: The Maritime Customs Service and the Global Origins of Modernity in China (Columbia University Press, 2014), 65. ↩︎
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Li Cao 曹雳, "Legal Order from Disorder: The Chinese Maritime Customs Service," ant.e, July 2026, https://ante-blog.univie.ac.at/article/legal-order-from-disorder-the-chinese-maritime-customs-service/
Negotiating Sovereignties
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Negotiating Sovereignties
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Inequality and its Afterlives: China’s “New Treaties”, 1921-1946

Throughout the interwar period, China’s efforts to revise its so-called “unequal treaties” reflected a dilemma shared by many (post-)colonial states: how to reconcile legal equality with economic self-determination. While treaty revisions promised the recovery of sovereign rights, they often preserved substantive inequalities – albeit under the guise of formal reciprocity. The “new treaties” (xinyue 新約) concluded by consecutive Chinese governments from the 1920s to the 1940s revealed how international law could reproduce imperial hierarchies in a new form. They also sparked intense debates within China itself: What did “self-determination” actually mean in treaty terms? Could equal terms on paper obscure unequal outcomes in practice? And how could sovereignty be reclaimed without surrendering economic autonomy? To illustrate these dilemmas, it is helpful to consider a concrete example.

The Sino-Belgian Treaty Dispute of 1926

On 6 November 1926, after months of fruitless negotiations with Brussels, the beleaguered Beijing government unilaterally terminated its 1865 Treaty of Commerce with Belgium. A landmark case in the interwar campaign to revise the 19th century “unequal treaties”, the Sino-Belgian treaty dispute captivated the international law community. While Beijing enlisted the expertise of prominent third-party jurists like Nicolas Politis, Robert Lansing, and Walther Schücking, Brussels referred the case to the Permanent Court of International Justice at The Hague for adjudication.

The legality of Beijing’s action was – and remains – hotly contested. In the eyes of the American minister, John MacMurray, it constituted “a palpable perversion” of treaty clauses and proof that the Chinese regarded their international obligations as mere “scraps of paper”.1 For others, like Schücking, it demonstrated that “[t]he Chinese nation demands its right to self-determination with elemental force”.2

Schücking’s letter to the Chinese legation in Berlin, dated 24 March 1927, in which he assured the Chinese that he supported their country out of the “sincere conviction that your nation is undoubtedly in the moral right in this case”. Reproduced with kind permission of Universitäts- und Landesbibliothek Münster, Nachlass Schücking [Signatur Bsp. 5,001].

From Inequality to Conditionality

Before the World Court could rule on the matter, another treaty had been concluded between Brussels and the newly established National Government in Nanjing. Though nominally characterized by “parfaite égalité”, the new agreement made the relinquishment of Belgian extraterritorial rights conditional upon the gradual opening of China’s inland market to foreign nationals and capital.3 As would soon become clear, these new terms proved no less controversial than the ones they replaced.

Similar suspensory clauses were inserted into many other agreements concluded by both rival Chinese governments during the first half of the 20th century. The story of these “new treaties” stretches from the Sino-German agreement of 1921 – the first formally equal treaty the Chinese Republic ever concluded with a European great power – to the Sino-American trade agreement of 1946, signed but a few years before the collapse of Chiang Kai-shek’s government as a result of the Chinese Civil War.

Economic Conditionality as Informal Empire

My research revisits the fierce debate about these “new treaties” among Chinese political and diplomatic elites. In doing so, it also proposes a change of perspective: while scholarship has long focused on the modes of treaty revision, including uses of the rebus sic stantibus clause, much less attention has been paid to other issues – such as what made a treaty “unequal” in the first place, or what exactly replaced these “unequal treaties”.

Centering on conditionality clauses as an instrument of “informal empire”, my research finds that – for states like republican China no less than for Siam or the Ottoman Empire – formal equality often came at the price of an explicitly pro-free trade agenda.4 In other words, the recovery of sovereign rights like tariff autonomy and territorial jurisdiction was frequently bought by concessions in the economic realm.

A Trojan horse for an “alien invasion”

While the National Government and liberal reformers defended this trade-off as a necessary evil, it sparked fierce debate on both the left and the right. Radical jurists like Zhou Gengsheng denounced formal reciprocity as little more than a legal veil for neocolonial oppression.5 In their view, China had to resist demands for national treatment and protect its native industry from the destructive pressure of international capital. Meanwhile, the ultranationalist right portrayed the opening of China’s hinterland to foreigners as a Trojan horse for an “alien invasion” or even a “population exchange” – a view in turn criticized as myopic xenophobia by liberal reformers and foreign diplomats alike.6

Zhou Gengsheng [S.R. Chow 周鲠生], an influential Chinese jurist and academic, was one of the fiercest critics of China’s “new treaties”. Source: Unknown; scanned by Internet Archive (https://archive.org/), Public domain, via Wikimedia Commons.

Revisiting the Interwar History of Legal Imperialism

The populist language used in these debates sounds surprisingly familiar in the contemporary context of deglobalization, as concerns over “economic dependency” and “illegal migration” are gradually supplanting the previous enthusiasm for ever more open markets. This is no coincidence – after all, the controversy over China’s “new treaties” highlights recurring dilemmas faced by national elites: Does political independence necessarily entail a degree of economic autarky? At what point do legitimate concerns over foreign influence turn into blind xenophobia? Rather than offering simple answers to these questions, my research highlights the inherent – and, arguably, irresolvable – tension between legal equality and economic self-determination.

In addition to these conceptual questions, it suggests that the interwar decades more generally ought to be revisited within the historiography of legal imperialism. Rereading the interwar history of treaty revision through the lens of informal empire not only helps recover forgotten transnational entanglements linking states like China, Iran, Soviet Russia, or Weimar Germany. It also casts new light on the enduring legal and economic asymmetries that have shaped the postcolonial world.

  1. The Minister in China (MacMurray) to the Secretary of State, Peking, 19 August 1926, in: Foreign Relations of the United States, 1926, Vol. I, document 761; The Minister in China (MacMurray) to the Secretary of State, Peking, 12 November 1926, in: ibid, document 770. ↩︎
  2. Walther Schücking, “Die Frage der Kündigung des belgisch-chinesischen Handelsvertrages von 1865,” in: Die Reichsgerichtspraxis im deutschen Rechtsleben, Band 1: Öffentliches Recht, ed. Otto Schreiber (De Gruyter, 1929), 72-121, at 119-120. ↩︎
  3. Treaty of Friendship and Commerce with Belgium and Luxemburg [比卢友好通商條約], with two accompanying notes and four declarations, done at Nanjing, 22 November 1928, in: 中外舊約章彙編 [Compilation of China’s Old Treaties], Vol. 3, 1919-1949, ed. Wang Tieya [王鐵崖] (1962), at 642-5. ↩︎
  4. For the concept of informal empire, see Jürgen Osterhammel, “Semi-Colonialism and Informal Empire in Twentieth-Century China: Towards a Framework of Analysis,” in: Imperialism and After: Continuities and Discontinuities, eds. Wolfgang J. Mommsen and Jürgen Osterhammel (German Historical Institute, 1986), 290-314. ↩︎
  5. Zhou Gengsheng [周骾生], “對於中比中義兩約之商榷 [The discussion about the Sino-Belgian and Sino-Italian treaties],” in: Modern Review [現代評論], Vol. 9, Issue 209 (1928), 2-6. ↩︎
  6. See generally Zeng Youhao [曾友豪], “從國際法學的觀點批評中外新約 [A critique of China’s new treaties from the viewpoint of international law],” in: Eastern Miscellany [東方雜志], Vol. 26, Issue 14 (1929), 13-22. ↩︎
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Lucas Brang, "Inequality and its Afterlives: China’s “New Treaties”, 1921-1946," ant.e, July 2026, https://ante-blog.univie.ac.at/article/inequality-and-its-afterlives-chinas-new-treaties-1921-1946/
Negotiating Sovereignties
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Comment: Sovereignty and Legal Transformation – Beyond the Binary

Modern international law has often approached sovereignty through binary distinctions: sovereign or non-sovereign, independent or colonized, equal or unequal. The formally independent but externally constrained polities of the late 19th and early 20th centuries complicate these categories. The examples discussed in this colloquy, Qing and interwar China alongside 19th century Morocco, reveal forms of sovereignty increasingly measured against ideals of territorial exclusivity and sovereign equality, yet continually qualified by extraterritorial privileges, foreign intervention, and unequal international obligations. Rather than chronicling a linear expansion of sovereign equality, these cases show how jurisdictional plurality and asymmetrical power relations were reconfigured within an international order formally based on equality.

Intermediary Governance

One of the clearest common features across these contexts of constrained sovereignties seems to be the growing importance of intermediaries. In China, as Li Cao shows in “Legal Order from Disorder”, the Chinese Maritime Customs Service (CMCS) emerged from the fractured legal and political environment of the treaty ports as an institution that was formally Chinese yet largely administered by foreigners. It functioned simultaneously as customs administration, diplomatic advisor, translator of international law, and mediator between Qing authorities and foreign powers. Neither fully foreign nor fully national, the CMCS occupied an in-between position that destabilized the idea that sovereignty requires exclusive and unitary state authority. It further illustrates a broader tradition of non-state entities vested with public authority in international affairs, as exemplified earlier by the Dutch East India Company.

This tension between formal sovereignty and dispersed authority appeared elsewhere in regions subject to imperial pressure. In “Negotiating the Sultan’s Sovereignty under European Imperialism in Morocco”, Antoine Perrier notes that in Morocco, European powers fragmented the sultan’s authority without formally abolishing it, by progressively expanding systems of consular protection that placed Moroccan protégés under foreign jurisdiction. Further east in the Ottoman Empire, capitulations and mixed courts similarly institutionalized overlapping jurisdictions and shared legal authority between imperial and foreign actors.1 In all these cases, intermediary institutions mediated rather than displaced sovereignty, a possibility facilitated by longstanding traditions of legal pluralism.2 What later legal doctrine would characterize as fragmentation3 was, in practice, a durable form of political ordering.

The Territorialisation of Sovereignty

Next to the proliferation of intermediary institutions, one of the most significant consequences of the legal transformations of the long nineteenth century was the growing tendency to define sovereignty through territorial administration, fiscal extraction, and centralized governance. Across a range of settings, from the Meiji land tax reforms in Japan4 to the tartīb in Morocco, fiscal reorganization became closely associated with the consolidation of territorial state authority.

In Morocco, authority had long rested on relational forms of allegiance grounded in Islamic law and the contractual logic of bayʿa rather than exclusive and territorially uniform control. Under rising imperial pressure, however, claims to sovereignty were increasingly measured by a state’s capacity to administer territory, collect revenue, and exercise effective jurisdiction. Fiscal reforms such as the tartīb reflected this shift, linking political authority to administrative reach even as consular protections and foreign jurisdictions limited the sultan’s authority.

Modern territorial statehood emerged through institutions that expanded state capacity while simultaneously embedding it within unequal international arrangements.

A comparable dynamic unfolded in China. Despite longstanding forms of differentiated authority, sovereign claims gradually came to be based on territorial jurisdiction, administrative capacity, and centralized state power. The treaty port system and institutions such as the CMCS contributed to this reorientation by extending Qing administrative reach and fiscal capacity, even though they remained embedded in internationalized structures of authority. By the interwar period, as Lucas Brang’s analysis in “Inequality and its Afterlives” demonstrates, efforts to revise the unequal treaties and recover tariff autonomy reflected this emerging conception of sovereignty. Yet the realization of these sovereign claims remained mediated by international agreements and enduring asymmetries of power.

These cases suggest that rather than displacing layered authority, modern territorial statehood emerged through institutions that expanded state capacity while simultaneously embedding it within unequal international arrangements whose effects would outlast the formal achievement of sovereign equality.

The Stickiness of Inequality

The interwar Chinese debates surrounding the “new treaties” illustrate this dynamic with particular clarity. Histories of unequal treaties often present treaty revision as recovery of sovereign equality. However, the replacement of formally unequal treaties by “equal” agreements did not eliminate asymmetry. Instead, inequality reappeared in new legal vocabularies of reciprocity, reform, and economic openness, as the relinquishment of extraterritorial privileges was made conditional upon the opening of Chinese markets to foreign trade and residence. Formal equality thus coexisted with new forms of external economic discipline.

The Moroccan experience points to the same underlying dynamic. The Algeciras Conference of 1906 formally recognized the “sovereignty of His Majesty the Sultan” but also expanded European supervision over Moroccan finances and administration. Likewise, further east, institutions such as the Ottoman Public Debt Administration subjected key areas of fiscal governance to international oversight while leaving the formal structures of sovereignty intact.5 In each case, recognition and constraint advanced together rather than sequentially.

“A dwarf is as much a man as a giant is; a small Republic is no less sovereign State than the most powerful Kingdom.” Emer de Vattel, Le droit des gens, 1758, English translation: The Law of Nations, 1797. Image source: Joaquín Torres-García, Public domain, via Wikimedia Commons.

These examples challenge teleological accounts claiming that imperial inequality gave way to sovereign equality. They reveal the “stickiness” of inequality: asymmetrical relations persisted through adaptation to new legal forms. Rather than disappearing, hierarchy was recast through doctrines of reciprocity, reform, international supervision, and juridical recognition. Sovereignty was not simply restricted from without; it was reconfigured through practices that redistributed authority and rendered external oversight compatible with formal independence.

This tension outlived the imperial formations in which it first emerged. Although decolonization and the universalization of sovereign equality transformed the juridical landscape, disputes over economic dependency, natural resources, and the New International Economic Order continued to expose the gap between formal equality and substantive power. The persistence of these inequalities suggests that the problem was never the absence of sovereignty, but the unequal conditions under which sovereign authority was exercised.

Conclusion: Negotiating Sovereignty under Asymmetry

The Chinese, Moroccan, and other polities often described as “semi-colonial” cast doubt on narratives of an international order founded on the progressive realization of sovereign equality. Positioned between formal independence and colonial subordination, they confounded these ideals and categories in practice.

Their significance lies not just in challenging the binary categories through which global history has often been written, but in revealing sovereignty itself as a historically contingent and continually reconfigured form of political authority. Far from being a stable, territorial, or indivisible possession, sovereign authority was exercised through layered jurisdictions, intermediary institutions, and differentiated governmental competences. What distinguished these polities was not that sovereignty was negotiated or shared, as it often was in European political history, but the conditions under which it was negotiated: within an international order that universalized the language of sovereign equality while reproducing enduring asymmetries of power.

These polities continually reimagined sovereignty in diverse institutional forms, seeking to preserve and expand autonomous political authority to the fullest extent that imperial encroachment allowed. However, rather than overturning hierarchy, their efforts reconfigured it through new institutional arrangements and legal vocabularies that reconciled sovereign authority with persistent external constraints. They therefore illuminate a constitutive tension of modern international law: the universal promise of sovereign equality has long coexisted with unequal conditions for the exercise of sovereign authority

  1. Zülâl Muslu, “Ottoman Mixed Commercial Courts,” in Max Planck Encyclopedia of International Procedural Law (Oxford University Press, 2023). ↩︎
  2. For discussions of how pre-existing regimes of legal pluralism facilitated overlapping jurisdictions like consular courts, see e.g. Pär Kristoffer Cassel, Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteenth-Century China and Japan (Oxford University Press, 2012). ↩︎
  3. International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission, finalized by Martti Koskenniemi, UN Doc. A/CN.4/L.682 (2006). ↩︎
  4. See Marius B. Jansen, The Making of Modern Japan (Harvard University Press, 2000). ↩︎
  5. See e.g. Murat Birdal, The Political Economy of Ottoman Public Debt: Insolvency and European Financial Control in the Late Nineteenth Century (I.B. Tauris, 2010). ↩︎

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Zülâl Muslu, "Comment: Sovereignty and Legal Transformation - Beyond the Binary," ant.e, July 2026, https://ante-blog.univie.ac.at/article/https://ante-blog.univie.ac.at/article/comment-sovereignty-and-legal-transformation-beyond-the-binary/
Forced and Forged Bridges of International Law
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Forced and Forged Bridges of International Law
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The María Luz Case: International Emergence of Japanese Legal Identity

In July 1872, the María Luz, a Peruvian barque chartered by a Spanish subject, was carrying Chinese indentured servants from Macau to Peru. Due to storm damage, the ship had to stop for repairs at Kanagawa Bay in Japan. While in harbour, some Chinese labourers escaped from the María Luz and sought protection by the British consular authorities, claiming that they had been mistreated by the captain, a Peruvian national named Ricardo Herrera.

First, a Criminal Case

The British referred the matter to the Japanese governor of Kanagawa, which led to several legal proceedings: a criminal case against Herrera for having illegally detained and punished his passengers, and two civil cases brought, in turn, by the captain against the fugitives to force them to return on board. The Chinese indentured servants were freed by the Japanese authorities. Peru protested and, after complex negotiations, Japan and Peru eventually referred the case to arbitration by the czar of Russia, who decided in favour of Japan in 1875.

Japan in Transition Deals with Foreign Powers

The María Luz incident happened at one of the most important crossroads of Japanese history. The Tokugawa shogunate (1603–1868), which had ruled the country for more than 250 years, had come to an end, and the Meiji era had begun. For some 230 years, the shogun had enforced an isolationist policy known as sakoku (“closed country”), by which contacts with the outside world were kept to a minimum and strictly controlled.

In 1853, under American military pressure, Japan was forced to open its borders to international trade, and this, combined with internal factors, led to the collapse of the shogunate. The turbulent years of bakumatsu (“end of the military government”, 1853–1868) had just passed, and the ruling elite of the new nation state was busy dealing with foreign powers, building the political infrastructure of the new state, and pursuing reforms in many different sectors – all at the same time.

A period of political and economic opening: Westerners Loading Cargo by Utagawa Sadahide, 1861. Bequest of William S. Lieberman, 2005, The Met Collection.

In 1872 the modern Japanese legal system was still under construction, but the laws of the Edo period had mostly ceased to be in force. The result was endemic legal uncertainty. Seeking to present Japan to the Western powers as a country fully capable of managing complex legal issues using instruments and procedures to which foreigners could relate, the ruling elite worked to conceal such uncertainty during the María Luz incident.1

The “Barometer of Modernization”

The Meiji elite understood that demonstrating mastery of the rule of law was fundamental to being seen on an equal footing with European countries. The law was a tool that foreigners seemed adept at using against Japan. Indeed, the opening of the country was obtained through the imposition of legal instruments: the Unequal Treaties. While reforms in the economy, military, etc. certainly had a decisive impact on Japan’s accession to the club of international powers, the law had tremendous symbolic importance. In the words of Takeshi Kojima, one of Japan’s leading law scholars, it was indeed considered the “barometer of modernization.”2

» Japan, together with other ‘Oriental’ countries, was in the uncomfortable position of being seen as ‘semi-civilized’ «

This was particularly significant for Japan’s status in the comity of nations. During this period in history, international law commentators embraced an imperialistic and colonial approach, and tried to establish a hierarchy of legal systems, of course placing those of Europe and the Unites States at the top, and those of what were referred to as “uncivilized” territories at the bottom. Japan, together with other “Oriental” countries, was in the uncomfortable position of being seen as “semi-civilized.”3

Europeans were sceptical that such countries were even capable of using international law as an instrument to manage their external relationships. To be promoted to the upper league of “civilized” nations, Japan had to prove that its legal system, both domestic and international, was adequate from a European perspective. Meanwhile, the Western powers had no intention whatsoever to reflect on the “barbaric” or backwards elements still present in their own legal systems, whether in their homelands or colonies: the object of comparison was always an idealized Europe.

Success in Arbitration, but No Apology

The final prong of the María Luz incident, the arbitration before Czar Alexander II of Russia, marked Japan’s debut on the scene of international dispute resolution. In a final and binding award, the czar asserted that Japan had complied with the principles of international law and that Peru was not entitled to any reparations. In this final stage, resorting to a technical legal procedure, i.e. arbitration, rather than seeking a diplomatic solution served to show that Japan was capable of acting as a competent player in a proper international legal forum and of using the instruments of the law.

A successful encounter with Western adversaries: Yokohama Sumo Wrestler Defeating a Foreigner by Ippōsai Yoshifuji, 1861. Bequest of William S. Lieberman, 2005, The Met Collection.

Before deciding to resort to arbitration, Peru and Japan had engaged in negotiations in Tokyo. During these exchanges, the South American country relied on diplomatic pressure and even resorted to veiled threats. The Peruvian representative seemed somewhat irritated by the fact that Japan, an Asian nation, did not simply apologize and acknowledge the tort caused to a white man. In fact, the Japan-Peru controversy was the first instance in which an Asian country successfully invoked the instruments of international law to defend itself in the community of civilized nations.

The Modern Legacy of the María Luz

The Japanese have not forgotten the María Luz. They still remember the case as a moment of glory for their country, in which they demonstrated their humanity and mastery of legal skills despite the difficulties the nation had to face in negotiating with Western powers. The case is even mentioned in modern-day policy papers: a document written in support of Japan’s request for a permanent seat on the United Nations Security Council specifically uses the María Luz example to demonstrate the country’s longstanding engagement with justice and human rights.

  1. Douglas Howland, Translating the West: Language and Political Reason in Nineteenth-Century Japan (University of Hawaiʻi Press, 2002); Michael R. Auslin, Negotiating with Imperialism: The Unequal Treaties and the Culture of Japanese Diplomacy (Harvard University Press, 2006). ↩︎
  2. Takeshi Kojima, Civil Procedure and ADR in Japan (Chuo University Press, 2004): 4. ↩︎
  3. Turan Kayaoǧlu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China (Cambridge University Press, 2010). ↩︎

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Giorgio Fabio Colombo, “The María Luz Case: International Emergence of Japanese Legal Identity,” ant.e, January 2026, https://ante-blog.univie.ac.at/article/the-maria-luz-case-international-emergence-of-japanese-legal-identity/