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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/