Horowitz-International Law and State Transformation
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International Law and State Transformation in China, Siam, and the Ottoman Empire duringthe Nineteenth CenturyAuthor(s): Richard S. HorowitzSource: Journal of World History, Vol. 15, No. 4 (Dec., 2004), pp. 445-486Published by: University of Hawai'i PressStable URL: http://www.jstor.org/stable/20079291Accessed: 16/08/2010 04:06
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International Law and State Transformation in China, Siam; and the Ottoman Empire during
the Nineteenth Century
RICHARD S. HOROWITZ
California State University, Northridge
^"TpHE king is a man no doubt wonderfully self-instructed, but
A that he should appreciate the great truths of political science, one could hardly expect." Thus wrote Sir John Bowring on 7 April 1855 about King Mongkut of Siam.1 He wrote this curious line during
his month-long stay in Bangkok to negotiate a treaty of friendship and commerce between Great Britain and Siam. An intimate of political philosopher Jeremy Bentham, a former member of parliament, and an
inveterate traveler and a prolific writer, Bowring was a specialist on
the management of those parts of "the East" beyond the direct control of the British Empire but very much in the sights of her merchants. From 1837 to 1838 Bowring served as a special commissioner sent by Lord Palmerston to investigate the commercial situation of Egypt and
Syria, and he played an active role in policy debates during the "East
1 Sir John Bowring, The Kingdom and People of Siam (Kuala Lumpur: Oxford Univer
sity Press, 1969), 2: 281. Earlier versions of this paper were presented at the Workshop on Late Imperial China in World History held at UCLA 2 November 2002 and at the Annual Conference of the World History Association in Atlanta in June 2003. I am grateful to commentators David Christian and Richard von Glahn and the participants in both con ferences. This paper has greatly benefited from suggestions from Michael Montesano, Tom
Devine, Rachel Howes, and Nan Yamane, and an anonymous reviewer for the Journal of World History, and was inspired by a decade of conversations with Caroline Reeves and Pat Giersch.
Journal of World History, Vol. 15, No. 4 ? 2005 by University of Hawai'i Press
445
446 JOURNAL OF WORLD HISTORY, DECEMBER 2OO4
ern crisis" of the time. The resolution of the crisis, which resulted in
Ottoman acceptance of unequal treaties and free trade in exchange for
British support against the renegade Egyptian regime of Muhammad
Ali, was not entirely to Bowring's liking (he advocated Ali's cause). Nevertheless Palmerston continued to find diplomatic uses for him. In
1847 Bowring was appointed British Consul in Canton, and in 1854 he became the governor of Hong Kong. In China Bowring was deeply involved in the creation of the semi-colonial treaty system?pressing for the establishment of a foreign customs service to collect taxes on
international trade, and in 1856 playing a key role in turning the man
ufactured Arrow incident into the casus belli of what is often referred to as the Second Opium War.2
At this time, Bowring was also the accredited British representa tive to the courts of Japan, Siam, Korea, and Vietnam. In that role he
went to Bangkok in March of 1855. King Mongkut's reputation for
scholarship and his familiarity with English language and history led
Bowring to expect an easy resolution. But while Mongkut proudly dis
played figurines of Victoria and Albert in his private apartments, he was stubbornly reluctant to accede to Bowring's demands, leading to
the frustrated entry in the British envoy's journal. A sharp increase in
the pressure placed on Siamese negotiators followed, and within a few
days Bowring was able to obtain what he felt was a satisfactory agree ment.3
What exactly did Sir John mean by the "great truths of political sci
ence"? The diplomatic record offers some clues. The Bowring Treaty established foreign diplomatic representation in Bangkok, extrater
ritoriality, and rules of international trade aimed at opening Siam's
markets. The agreement, along with the supplementary Parkes treaty
signed in 1857, bore a striking resemblance to the semicolonial systems
already in existence in the Ottoman Empire and partially in place in
China. They began Siam's integration into the European-dominated international society in precisely the way that the settlements of
2 On Bowring's role in the Ottoman crisis, G. F. Bartle "Bowring and the Near Eastern
Crisis of 1838-1840," English Historical Review 79 ( 1964): 761-774. For contrasting views on
his role in China see John K. Fairbank, Trade and Diplomacy on the China Coast: The Open
ing of the Treaty Ports (Cambridge, Mass.: Harvard University Press, 1953), and J. Y. Wong,
Deadly Dreams: Opium and the Arrow War (1858-1860) (Cambridge: Cambridge Univer
sity Press, 1998). 3
Bowring, 2: 212-226 provides a summary and text. For a historian's discussion from
the British documentation see Nicholas Tarling, "The Mission of Sir John Bowring to
Siam," Journal of the Siam Society 50.2 (1962): 91-118.
Horowitz: International Law and State Transformation 447
1838-1840 had done to the Ottoman Empire and as the agreements of 1843, 1858, and i860 would do in Qing China. Clearly, Bowring had in mind the benefits of free trade?an enduring theme through his career?and the necessity and appropriateness of British diplo matic dominance. But surely Bowring's "truths" included the practices of international law that he was forcing a reluctant Siamese court to
accept. The agreements signed with Siam were articulated within the
conceptual universe of European international law and the patterns of
diplomatic behavior it embodied. This marked a sharp break from
Asian practices of interstate relations. These treaties and the patterns of relations they set out would come to form a fundamental infra structure of semicolonial political systems.
Bowring's involvements with China, Siam, and the Ottoman
Empire in the 1840s and 1850s point to some possibilities for investi
gating comparisons and connections among these three states. Rela tions with the Ottoman Empire offered European powers a model of
how to carry on relations with large, non-Christian Eurasian govern ments. This model was then pressed into use in the Treaty of Nanking that ended the Opium War, which in turn formed the basis for treaties
with Siam and Japan. Indeed, the semicolonial system?including legal
privileges for outsiders, a free trade regime imposed by outside power, and the ability and willingness of imperial powers to interfere in inter
nal affairs of subject states?applies effectively to all three, and points to common origins in British policy in all three states.4 While schol ars of Siam, Qing China, and the Ottoman Empire have been reluc tant to engage in comparative study, in this case it seems appropriate.5
4 For a systematic analysis of semicolonialism and its relationship to concepts of infor mal empire see J?rgen Osterhammel, "Semi-Colonialism and Informal Empire in Twentieth
Century China: Towards a Framework of Analysis," in Imperialism and After: Continuities and Discontinuities, ed. Wolfgang J. Mommsen and J?rgen Osterhammel (London: Allen &
Unwin, 1986), pp. 290-314. 5
Comparisons of China with Japan include Frances Moulder, Japan, China and the
Modern World Economy (1977), and Marion J. Levy, "Contrasting Factors in the Moderniza tion of China and Japan," Economic Development and Cultural Change 2.3 (1953): 161-197.
More recently historians of modern China have tended to look to early modern Europe for
comparison, e.g., R. Bin Wong, China Transformed: Historical Change and the Limits of Euro
pean Experience (Ithaca, N.Y.: Cornell University Press, 1997), and Kenneth Pomeranz, The
Great Divergence: China, Europe, and the Making of the Modern World Economy (Princeton,
N.J.: Princeton University Press, 2000). Benedict Anderson notes a reluctance to use com
parisons other than Meiji Japan among scholars of Thailand; see "Studies of the Thai State, the State of Thai Studies" in The Study of Thailand, ed. Eliezar Ayal (Athens, Ohio: Cen ter for International Studies, Ohio University, 1978), pp. 197-198. On comparisons of
Turkey and Japan see Robert Ward and Dankwart Rustow, eds., Political Modernization in
Japan and Turkey (Princeton, N.J.: Princeton University Press, 1964).
448 JOURNAL OF WORLD HISTORY, DECEMBER 2OO4
The three bear notable similarities. All were extensive states on the Eurasian continent. All managed to avoid European colonial occu
pation, but at the cost of humiliating treaties. In each case a monar
chical regime of long standing was able for a period of time to adapt to, and in some senses benefit from, the European presence. Faced
with common concerns, they dealt with them in the context of dis
tinctive frameworks of understanding and unique domestic political constraints.
In this essay I will begin to explore both connections and compar isons by focusing on just one piece of Bowring's "political science":
international law and its influence on the transformation of the state
in Qing China, the Ottoman Empire, and Siam. International law not
only served as an institutional framework for the maintenance of diplo matic relations, but also embodied key concepts about law, administra
tive organization, territoriality, and national identity. Ottoman, Qing, and Siamese statesmen, facing relentless diplomatic pressure and (usu
ally) veiled military threats, adapted to these standards to maximize
their autonomy. As a result, these three old Eurasian states came to
increasingly approximate the European models of a national state by the early twentieth century.
International Law in Semicolonial Environments
When European colonial representatives went abroad in the nine
teenth century, consciously or not they carried international law in
their intellectual portmanteau. International law has had a curious career in world history. Its roots lie in Europe before, during, and after
the Thirty Years War and efforts to bring some standards of civility to
interstate relations. Lacking any sort of presiding international body, international law was the province of professional diplomats and small
groups of intellectuals (many of whom had diplomatic experience) who sought to codify standards of international behavior and discern
its underlying principles. By the late eighteenth and early nineteenth
centuries, treatises of international law were on every diplomat's ref erence shelf.6 In the minds of European envoys, international law was
the model of civilized international behavior and served as an institu
tional framework for a European-centered international society. As
6 The best general survey is Arthur Nussbaum, A Concise History of the Law of Nations, rev. ed., (New York: Macmillan, 1954).
Horowitz: International Law and State Transformation 449
diplomats from Europe and the United States ventured into Asia and
Africa in the nineteenth century, they brought with them expecta tions that international relations would and should be carried out
within the frameworks of international law. Yet international law and
imperialism proved to be strange bedfellows: Europe's growing politi cal engagement in Asia and Africa forced international lawyers to
reconsider the intellectual underpinnings of their "science."
Scholars studying the history of international relations have given international law scant attention, but this is largely based on false
assumptions about its role. In spite of high hopes for international col
lective security through the League of Nations and United Nations in
the past century, international law has not functioned in a manner
analogous to criminal law. In times of conflict, powerful states breached
international law with impunity. Scholars therefore have presumed it
to be little more than legalistic cover for realpolitik.7 The key function
of international law in the nineteenth and early twentieth centuries
was quite different: it established norms for behavior (in the case of
"public" international law this was specifically the behavior of states) in international society. While international law often did not (and
does not) greatly constrain the actions of great powers in an interna
tional system, it does offer a standing body of understandings for
resolving the quotidian conflicts of day-to-day international relations.
For example, it defines which organizations (i.e., recognized states) are
players in the game of international diplomacy, it establishes standards
for the treatment of foreign diplomats and the modes of negotiation and ratification of treaties, it provides principles for settling compet
ing claims over legal and political jurisdiction, and it establishes com
mon definitions of terms used in treaties and other agreements.8 Inter
national law functioned as an institution, not in the "brick and
mortar" sense usually used by historians, but in the sense used by econ
omists. In the words of Douglass North, "Institutions are the humanly devised constraints that structure political, economic and social inter
actions" through formal rules and informal constraints, and they are
7 For example, Henry Kissinger, in surveying the European diplomatic arena from the
age of Richelieu to Napoleon, does not even mention the development of international
law in this period. See Kissinger, Diplomacy (New York: Simon & Schuster, 1994), pp.
56-77. 8 William D. Coplin, "International Law and Assumptions about the State System,"
in International Law and Organization: An Introductory Reader, ed. Richard D. Falk and
Wolfram Hanrieder (Philadelphia: Lippincott, 1968); Hedley Bull, The Anarchical Society: A Study of Order in World Politics (New York: Columbia University Press, 1977), pp.
136-142.
45o JOURNAL OF WORLD HISTORY, DECEMBER 2OO4
intended "to create order and reduce uncertainty in exchange."9 By establishing modes of everyday political interaction, international law
has provided an institutional framework for international politics. These post-Westphalian conceptions of the "law of nations" (the
term "international law" was coined by Jeremy Bentham in the 1780s and only gradually came into widespread use) and diplomatic practice
were not recognized outside of Europe before the nineteenth century. Where international law presumed the equality of recognized states,
Qing China, Siam, and the Ottoman Empire constructed their rela
tions on the basis of hierarchies of rulers, with more powerful states
claiming special rights and responsibilities over lesser ones. At least in
the eyes of their own propagandists, both the Ottomans (as claimants to the caliphate and as the protectors of the commonwealth of the
faithful) and the Qing (where the emperor claimed to be the Son of
Heaven to the East Asian world and a great khan and a supporter of
Tibetan Buddhism in Central Asia) claimed special status in interna
tional political society.10 The Bangkok dynasty in Siam legitimated its own position internally and externally by its endorsement and patron
age of Theravada Buddhism.11 Tributary relations, common in East and
Southeast Asia, also played a role. These were based on the exchange of gifts between rulers, with the lesser acknowledging subordinate sta
tus and the more powerful claiming suzerainty.12 None of this would
9 Douglass C. North, "Institutions," Journal of Economic Perspectives 5.1 (1991): 97. The
work of Lauren Benton has inspired me to make the connection with new institutionalist
approaches. See the introduction to Lauren Benton, Law and Colonial Cultures: Legal
Regimes in World History, 1400-1900 (Cambridge: Cambridge University Press, 2002). 10 On the ideas of the caliphate Muslim commonwealth and Ottoman legitimacy see
Amira K. Bennison, "Muslim Universalism and Western Globalization," in Globalization in
World History, ed. A. G. Hopkins (New York: WW Norton, 2002), pp. 75-90. Selim
Deringal, "Legitimacy Structures and the Ottoman State: The Reign of Abdulhamid II
(1876-1909)," International Journal of Middle East Studies 23.3 (1991): 345-359, discusses
the increasing use of the idea of the caliphate in the late nineteenth century. On the mul
tiple legitimating strategies of Qing rulers see Evelyn Rawski's overview "Reenvisioning the
Qing: The Significance of the Qing Period in Chinese History," Journal of Asian Studies
55.4 (1996): 829-850. 11
Craig J. Reynolds, "Buddhist Cosmography in Thai History, with Special Reference to Nineteenth-Century Culture Change," Journal of Asian Studies 35.2 (1976): 203-211; Patrick Jory, "Thai and Western Buddhist Scholarship in the Age of Colonialism: King
Chulalongkorn Redefines the Jatakas," Journal of Asian Studies 61.3 (2002): 907-908. 12 On China's involvement in the tribute system and other kinds of relations with the
outside world, see the essays in John K. Fairbank, ed., The Chinese World Order, and, from a different perspective, James Hevia, Cherishing Men from Afar: Qing Guest Ritual and the
Macartney Embassy of 1793 (Durham, N.C.: Duke University Press, 1995), pp. 29-56. For a lucid discussion of tribute relations in Siam in the early Bangkok dynasty, see David K.
Wyatt, Thailand, A Short History (New Haven, Conn.: Yale University Press, 1982), pp.
155-161.
Horowitz: International Law and State Transformation 451
have been surprising to Europeans before the mid-i6oos. But in the
late eighteenth and early nineteenth centuries these hierarchies were
early flashpoints of conflict.
The first stage of the globalization of international law came in con
flicts over the practices and proprieties of diplomacy in the eighteenth and nineteenth centuries. The Ottoman Empire had been a significant
player on the European international scene for centuries, and for
much of that time made its own rules. Only in the 1700s, as Ottoman
military weakness became obvious, did the Sublime Porte accede to
European standards of diplomatic exchange and intercourse and begin to send envoys abroad.13 In China, where practices of international
relations were quite varied, the rejection of the Macartney expedition in 1793 and subsequent Qing resistance to what the British regarded
as "normal" diplomatic relations famously showed the conflicts in Chi nese and British conceptions of international relations as played out in
the rituals of diplomacy. A long negotiation was required to find appro
priate rituals for Macartney's audience with the Qianlong emperor because Macartney, according to his own account, refused to kowtow.
In the end, the Qing emperor refused British requests for trade and
diplomatic residence. While the Qing throne made major concessions
after the Opium Wars, allowing foreign legations in Beijing and accept
ing European modes of diplomacy in i860, it was not until after the
Boxer War in 1900 that the conflicts over issues such as imperial audi ences for foreign representatives and the nature of the Qing foreign office were settled to the satisfaction of foreigners from Europe and
North America.14 Siam likewise operated as one of several major pow ers in mainland Southeast Asia within the tributary relationships
accepted in the Southeast Asian world. This produced similar debates over diplomatic ritual. The Burney mission in 1826 and the Bowring
mission in 1855 also began with extended negotiations over proper ritual forms.15
The debates over rituals in these cases had important underpin
13 Thomas Naff, "The Ottoman Empire and the European States System," in The
Expansion of International Society, ed. Hedley Bull and Adam Watson (Oxford: Clarendon
Press, 1984), pp. 143-169. 14 For the most recent effort to understand the crisis over diplomatic rituals see James
He via, Cherishing Men from Afar. On foreign pressures to remake the Zongli Yamen into a
"proper" foreign office see Richard S. Horowitz, "Breaking the Bonds of Precedent: The
1906 Government Reform Commission and the Origins of Ministerial Government in
China," Modern Asian Studies 37.4 (2003): 775-797. 15
The Burney Papers (Farnborough: Gregg International, 1971) 1: 42-50; Bowring,
Kingdom and People of Siam, 2: 252-254, 259-262.
452 JOURNAL OF WORLD HISTORY, DECEMBER 2OO4
nings: European diplomatic rituals were understood to represent the
European conception of an international society in which states were
regarded as equals. In breaking with the hierarchical ritual systems of
old empires, foreign diplomats believed that they were sending a mes
sage in a language that "Oriental" monarchs, presumed to be con
cerned with ceremony rather than substance, could understand: Euro
peans were not to be treated within the patronizing styles of old
imperial courts. These squabbles over ritual were the first stage in a
European effort to globalize their own legalistic conception of inter
national society. But international law, as defined before 1800, proved an uncom
fortable fit with expansionist claims to empire, and the nineteenth
century saw a redefinition of its philosophical foundations in order to
make it applicable to colonial and semicolonial contexts. Early writers on international law had taken an inclusive, natural law approach that made it difficult to reject claims of indigenous states and rulers to
the same treatment as European states. Emerich de Vattel in his Law
of Nations, a standard treatise first published in 1758, declared "There
is no doubt of the existence of a natural Law of Nations, inasmuch as
the Law of Nature is no less binding upon States, where men are
united in a political society, than it is upon the individuals them
selves." Consequently to Vattel the law of nations "is a special science
which consists in a just and reasonable application of the Law of
Nature to the affairs and conduct of Nations and of sovereigns."16 The
idea that international law is founded on natural law was rooted in the
early seventeenth-century work of Hugo Grotius. It suggests the situ
ation of states is analogous to men in the state of nature, where cer
tain "natural" principles of morality apply even without government or religion to define them.17 The implication is that international law, while of European origin, is universally applicable, and quite separate from Christian morality.
During the nineteenth century the natural law justification disap
peared and was replaced by a more parochial idea: that international
law was Christian in its origins and that only those non-Christian
16 E. de Vattel, The Law of Nations or the Principles of Natural Law Applied to the Con
duct and to the Affairs of Nations and of Sovereigns, vol. 3, trans, of the 1758 ed. by Charles
G. Fenwick (reprint, New York: Oceana Publications, 1964), p. 3a. 17
Hugo Grotius, The Rights of War and Peace: Including the Law of Nature and Nation, tr. A. C. Campbell (reprint ed., Westport: Hyperion, 1979), pp. 17-24; Nussbaum, pp. 108-110.
Horowitz: International Law and State Transformation 453
states that had reached a comparable level of "civilization" could be
treated as full participants in international law. The shift away from
natural law theory is clear in the first edition of Henry Wheaton's trea
tise Elements of International Law, published in 1836. Wheaton, an
experienced American diplomat and jurist, carefully reviewed the
natural law justification and concluded that it was not sufficient. He
asserted that there was no universal law of nations and that in practice the Law of Nations was not regarded as fully applicable in relations
with Islamic states.18 He concluded with the following definition:
The law of nations or international law, as understood among civilized, Christian nations, may be defined of consisting of those rules of con
duct which reason deduces, as consonant to justice, from the nature of
the society existing among independent nations; with such definitions and modifications as may be established by general consent.19
Where Vattel's definition is universal, Wheaton (whose work replaced Vattel's as the standard handbook for diplomats) is quite clear that
international law is an artifact of Christian civilization. This served to
justify the reality of unequal treaty relations in European relations with states in Asia and Africa.
The work of nineteenth-century writers such as Wheaton pointed to a new focus on the concept of "civilization" in international law. In
his survey of international legal literature from the turn of the twenti
eth century, Gerrit Gong asserts that "a standard of 'civilization' had
emerged as an explicit legal principle and an integral part of the doc trines of international law," and a non-Christian state needed to meet
that standard to be considered a full participant in international soci
ety and fully subject to the rights granted under international law. The
"standard" for a civilized state included guarantees of basic rights of
property and person, an organized political system with a capacity for
self-defense, adherence to international law, maintenance of a system for diplomatic interchange, and a state conforming to the "accepted norms and practices of the 'civilized' international society."20 This
standard assumed a hierarchy of states, which in the late nineteenth
century were commonly divided into three groups?the civilized, the
18 Henry Wheaton, Elements of International Law (Philadelphia, 1836; reprint New
York: De Capo Press, 1972), pp. 35-46. Hereafter cited as Wheaton 1836. 19 Wheaton 1836, p. 46. 20 Gerrit W Gong, The Standard of Civilization in International Society (Oxford: Oxford
University Press, 1984), pp. 14-15.
454 JOURNAL OF WORLD HISTORY, DECEMBER 2OO4
barbarous, and the savage?and international law applied fully only to
the first.21
Nevertheless, the "standard of civilization" did offer non-European states a way forward to full participation in the international legal
regime. The officials in these states began to familiarize themselves
with concepts of international law and to use it in shaping their rela
tions with Europeans and North Americans. In China, the Qing
foreign office called the Zongli Yamen, created in 1861, sponsored American missionary W. A. P. Martin's translation of Wheaton into
Chinese in the mid-i86os and subsequently hired him as chief instruc
tor in the Yamen's interpreter school, where Martin and his students
translated several other international legal treatises.22 The Qing learned from bitter experience in the Tianjin massacre of 1870, the
Margary affair of 1874, and the Boxer Uprising that failure to live up to international legal standards, such as protecting foreign diplomatic
personnel, produced a punishing response from foreign powers. Simi
larly, according to Roderic Davison, adherence to international law was a fundamental principle of Ottoman diplomacy from 1840 until
the final breakdown of the empire. In the case of Siam, under the reigns of Mongkut and Chulalongkorn, care was taken to observe treaties
and, by the late nineteenth century, also to participate in interna
tional society. Francis Sayre, and American who served as an interna
tional legal advisor to the Siamese government in the 1920s, wrote
with great enthusiasm about the achievements of Chulalongkorn and
described Siam as having "a well developed sense of international
responsibility"?noting ironically that by 1910 extraterritorial privi
leges were at times preventing Siam from fulfilling some of their inter
national legal responsibilities for protecting trademarks and trade
names, as foreign residents were the chief offenders.23
21 Gong, pp. 5-6.
22 The Martin translation project and the Zongli Yamen's interest in international law
has been dealt with by several authors. Immanuel Hsu's China's Entry into the Family of Nations asserts that the Qing failed to take full advantage of international law to revoke the
unequal treaties?a position that seems unrealistic. Lydia H. Liu emphasizes the complex ities of translation and the international law as a means of conveying imperial/colonial ideas in China in "Legislating the Universal: The Circulation of International Law in the
Nineteenth Century," in Tokens of Exchange: The Problem of Translation in Global Circula
tions, ed. Lydia H. Liu (Durham, N.C.: Duke University Press, 1999), pp. 127-164. The
treatment in this essay follows my fuller discussion in Richard S. Horowitz, "Central Power
and State Making: The Zongli Yamen and Self-Strengthening in China," Ph.D. diss., Har
vard University, 1998, chap. 5. 23 Roderic H. Davison, "Ottoman Diplomacy and Its Legacy," in Imperial Legacy: The
Ottoman Imprint on the Balkans and the Middle East, ed. L. Carl Brown, (New York: Colum
Horowitz: International Law and State Transformation 455
The shift from natural law to the standard of civilization had pro found consequences for China, Siam, and the Ottoman Empire. It
served to justify the unequal treaties, extraterritoriality, and transgres sion of basic principles of international law in dealing with the non
Christian world. It gave each of these non-European states a strong incentive to adhere to European practices in order to justify equal treatment. Finally, despite the patronizing tone of the international
lawyers, it provided leaders of non-Western states, even those not fully "civilized" in the international sense, with a set of tools for playing the
games of international politics for their own benefit even though they remained in positions of profound military weakness.
Treaty Systems, Extraterritoriality, and
Semicolonial States
Systems of unequal treaties formed the international legal mechanism
for defining semicolonial relationships. Treaties, which were techni
cally agreements between equal and consenting states, were standard
practice in the European diplomatic world. But exported eastward, they came to have a much more negative connotation, defining the rules of
engagement between expanding European and U.S. powers and older
Eurasian states. These treaties were unequal in several senses: they were
forced at gunpoint; they expressed the economic and political interests
of Britain and other powers; and key provisions, including extraterrito
riality and restrictions on tariffs on foreign trade, were not reciprocal. The very inequalities of the treaty system, the justification of them
with arguments about the "standard of civilization," the demands of
modern European diplomacy, and the impacts of these agreements on
established state institutions and expectations of "civilized" govern ment put pressure on semicolonial states to transform themselves.
In each of the three cases presented here, the modern treaty sys tems were initiated by the British, but other European powers, the
United States, and, later, Japan also participated. In certain respects?
especially the emphasis on free trade?these systems fit British strate
gic priorities particularly well. But from the view of most other major powers, while these arrangements were probably not ideal, they were
acceptable. The British approach to informal empire left the doors
bia University Press, 1996), p. 185. On Siam see Gong, pp. 217-230, and Francis Sayre, "The Passing of Extraterritoriality in Siam," American Journal of International Law 22.1
(1928): 73-74.
456 JOURNAL OF WORLD HISTORY, DECEMBER 2OO4
open for other powers and their diplomats, merchants, and missionar
ies to play a role (in the universe of international law, Most Favored
Nation arrangements served to distribute privileges widely among
foreign powers). In midcentury other powers quickly joined in and
signed similar treaties?and at times pressed for further concessions.
France allied with Britain in the Arrow War against Qing China, and
Russia took advantage of the Qing defeat in i860 to demand similar treaties as well as territorial concessions. Both France and Russia
remained active players in semicolonial arrangements until World
War I. In the Ottoman Empire, Russia posed a direct threat to the
Ottomans and played a central role in all of the crises that came to
form the "Eastern Question." While forcing numerous territorial and
other concessions, the Russians, probably for reasons of balance of
power, accepted the treaty system and the continuation of a militarily overmatched Ottoman regime. France and Germany played an increas
ingly active role in the Ottoman situation in the latter half of the
nineteenth century as British economic interest receded. In Siam, fol
lowing Bowring's opening, France gradually became involved. In the
i88os and 1890s, seeking to secure its Indochinese colonies, France
placed Siam under intense pressure and gained major territorial con
cessions in Laos and Cambodia. But here, as well, France ultimately
accepted the continuation of the semicolonial arrangements. The semicolonial phenomenon spread beyond the leading Euro
pean powers. The United States, which shared the British interest in
free trade, followed the British lead in China and Siam, and played a
central role in forcing similar arrangements on Japan in the 1850s. By the 1890s, Meiji Japan had gone from victim to predator, becoming one
of the major forces behind the semicolonial arrangements in China.
The nationals of minor European states such as Belgium also benefited
from similar legal advantages written into treaties. While much more
research is needed, it seems that a key to the endurance of the treaty
system as a structure for semicolonial systems was that it provided a
framework that various powers were able to live with, even if it did not
fulfill all of their desires. The multinational nature of the semicolonial treaty system also
influenced the choices available to Ottoman, Qing, and Siamese polit ical leaders as they reshaped their state institutions. Rather than adher
ing to British models and using only British advisors, they had a choice
from a range of "civilized" (primarily European) models. The choices were eclectic: the Ottomans modeled their legal system on the French
and employed Prussian military advisors; Siam used British financial
advisors and Belgian legal experts; Qing China hired military advisors
Horowitz: International Law and State Transformation 457
and specialists from a host of countries; and in what has come to be seen as the quintessential semicolonial institution, the Maritime Cus toms Service was led by British inspectors-general, but it deliberately recruited both executive and technical staff from across Europe, the
United States, and, later, Japan. In contrast to fully colonial systems in which one power exerted both political and cultural dominance, the semicolonial treaty framework imposed a European-centered cos
mopolitan civilization as a standard upon which indigenous states
would be judged?a standard that the Eurocentric nature of nine
teenth-century international law both embodied and promoted. This section examines how the three Eurasian states adapted insti
tutions under pressure from the treaty systems. While the conse
quences of these pressures spread across the full range of government
activity, the focus will be on three aspects of the semicolonial state:
legal reforms aimed at ending extraterritoriality, the establishment of
ministerial forms of government, and the reform and restructuring of revenue systems in the face of opportunities and constraints created by the foreign presence.
First, an overview of the process of state transformation is in order.24
If one takes 1800 as a starting point, the structures of the three states
show at least as many differences as commonalities. The Qing state,
stretching from the county magistrate at the bottom to the emperor and his Grand Council at the top, was integrated, bureaucratic, and run by a highly educated elite in a large part (but by no means exclu
sively) chosen through the examination system. At the local level, officials were overworked, understaffed, and embattled, but there was
no question that officials were ultimately responsible to Beijing. The tax burden fell primarily on agriculture through land and grain taxes.
By contrast, the Ottoman Empire in the late eighteenth century had a small and less integrated civil bureaucracy, and central state leaders
negotiated a tense balance between military and civil organizations. As one traveled farther away from Istanbul there was a greater level of
decentralization than in Qing China, with power shifting to local
notables over the course of the eighteenth century. While the tax sys tem, as in China, was heavily dependent on agricultural taxes, the
Ottomans depended heavily on tax farming. Control of governors in
24 My choice of the term "state transformation" rather than "state building" is a con
scious one. The trajectory of these changes was often not "Europeanized" enough to fit the notions of state making or state building referred to in the literature?indeed, particularly in the Qing and Ottoman cases these periods have often been seen as part of long-term
processes of imperial decay?so I prefer the more neutral term "state transformation."
458 JOURNAL OF WORLD HISTORY, DECEMBER 2OO4
areas far from the empire's core in the western Anatolia was sometimes tenuous. By the nineteenth century, a few, such as Muhammad Ali in
Egypt, were independent in fact if not form.25 Siam was ruled by a king and a cadre of officials drawn from a small group of aristocratic fami
lies. Central government departments mixed territorial jurisdictions and functional roles. While the ultimate authority of the Bangkok court was accepted across the realm, on a day-to-day basis central
authority outside of the capital was limited. As time went on revenues
were increasingly dependent on the sale of tax farms on various com
modities.26
But a comparative look at existing scholarship suggests that nine
teenth-century processes of reform made the state in Qing China,
Siam, and the Ottoman Empire more alike. Each underwent a process of state transformation: a mixture of deliberate reforms and ad hoc
responses to necessities created by foreign threats and internal admin
istrative, economic, and military problems. Each restructured its mili
tary and imported modern European weaponry, but in the short term
had far greater success in suppressing internal challenges than in ward
ing off foreign threats.27 Each gradually instituted reforms to make its
central government more nearly fit European categories and expecta tions: the Ottomans in the 1860s and 1870s, Siam in the 1880s and
1890s, and Qing China during the post-Boxer reforms. Each moved far
25 For an institutional survey of the Ottoman government during the golden age of
Suleiman the Magnificent see Norman Itzkowitz, Ottoman Empire and Islamic Tradition
(Chicago: University of Chicago Press, 1972). For an outline of nineteenth-century devel
opments, see Carter Findley, Ottoman Civil Officialdom: A Social History (Princeton, N.J.: Princeton University Press, 1989), pp. 20-28. On the rise of local notables, see Albert
Hourani, "Ottoman Reforms and the Politics of Notables," in Beginnings of Modernization in the Middle East: The Nineteenth Century, ed. William R. Polk and Richard L. Chambers
(Chicago: University of Chicago Press, 1968), pp. 41-68. 26 Akin Rabibhadana, The Organization of Thai Society in the Early Bangkok Period,
1782-1873 (Ithaca, N.Y.: Cornell Southeast Asia Program, 1969); David K. Wyatt, "Fam
ily Politics in Nineteenth Century Siam," in Studies in Thai History, ed. David K. Wyatt
(Chiang Mai: Silkworm, 1993); Tej Bunnag, The Provincial Administration of Siam, 1892
1915 (Kuala Lumpur: Oxford University Press, 1977), chap. 1. Neil Englehart in Culture
and Power in Traditional Siamese Government (Ithaca, N.Y.: Cornell Southeast Asia Pro
gram, 2001) argues that the literature overstates the weakness of the Bangkok government in the provinces.
27 On China see Richard S. Horowitz, "Beyond the Marble Boat: The Transformation
of China's Military, 1850-1911," in A Military History of China, ed. David Graffand Robin
Higham (Boulder, Colo.: Westview, 2002); and Kemal H. Karpat, "The Transformation of
the Ottoman State, 1789-1908," International Journal of Middle East Studies 3 (1972):
251-256. Benedict Anderson makes the same point about Siam, citing the unpublished Cornell Ph.D. dissertation of Noel Battye; see Anderson, "Studies of the Thai State," pp.
202-205.
Horowitz: International Law and State Transformation 459
more quickly to implement administrative rather than constitutional reforms. There is also a loose pattern of the progression of reforms:
early reforms that sought to adapt indigenous institutions to new situ ations followed by much more systematic efforts to use European mod els. The Ottomans began the earliest, beginning with short-lived mil
itary reforms in the 1790s, the elimination of the janissaries in the
1820s, and the expansion of the central bureaucracy even before the
semicolonial structure came to be formalized. The Tanzimat reforms
(1839-1876), which brought about far more thoroughgoing reforms, followed the creation of the new treaty system. Qing China saw the
self-strengthening reforms from i860 to 1894 and more systematic and radical New Policy reforms (1901-1911) that followed the Boxer War. In Siam, King Mongkut began reforms after Bowring's visit, but his
successor, Chulalongkorn, began more systematic reforms in the late
i88os, after years of careful domestic political maneuvering.28
Extraterritoriality and Semicolonial Order
By the early twentieth century the aspect of the semicolonial regime that most enraged Chinese was the institution of extraterritoriality.
The exemption of foreign nationals from the jurisdiction of Chinese
courts, the use of foreign-controlled consular courts that were widely believed to be deeply biased, and the frequent abuse of these privileges became touchstones of growing popular nationalist and anti-imperial ist feeling. While the debates over extraterritoriality were particularly
bitter in China, where Chinese nationalists made it a central issue and
foreign nationals fought hard to preserve the status quo, it was a
prominent issue in other semicolonial societies as well.29 In a sense,
extraterritoriality was nothing new. Lauren Benton has shown that
plural legal systems were common in colonial systems. Powerful mul tiethnic empires, such as the Ottoman, were quite willing to accord a
28 On China's post-Boxer reforms see the overview in Chuzu Ichiko, "Political and Institutional Reform, 1901-1911," in Cambridge History of China, Volume 11: Late Ch'ing
Part II, ed. John K. Fairbank and Kwang-ching Liu (Cambridge: Cambridge University Press, 1980), pp. 375-415. On the Ottoman reforms see especially Roderic Davison, Reform in the Ottoman Empire, 1856-1876 (Princeton, N.J.: Princeton University Press, 1963), and
Carter V. Findley, Bureaucratic Reform in the Ottoman Empire: The Sublime Porte, 1789-1922 (Princeton, N.J.: Princeton University Press, 1980), chaps. 4-5; for Siam see Wyatt, Thai land: A Short History, ch. 7; and for a more detailed account focusing on the interior min
istry see Tej Bunnag, Provincial Administration. 29
Wesley Fishel, The End of Extraterritoriality in China (Berkeley: University of Cali fornia Press, 1952).
460 JOURNAL OF WORLD HISTORY, DECEMBER 2OO4
level of extraterritorial law to minority communities, but with ultimate
jurisdiction remaining in the hands of the sovereign.30 But the inscrip tion of extraterritoriality into treaties changed the situation in impor tant ways. This was a formalized system, which foreigners blatantly used to their own advantage in pursuing both commercial enterprises and carrying on private lives. Most importantly, within the treaty sys tem extraterritorial rights could not simply be revoked by the host
government without fear of serious reprisals. The origins of extraterritoriality in China have been a subject of
debate. John Fairbank's influential interpretation emphasized the joint role of the Qing officials and their Western interlocutors in shaping the treaty system. Joseph Fletcher made a convincing case that agree
ments with Kokhand in the mid-1830s were a direct antecedent to the
settlements that ended the First Opium War.31 Missing from this dis
cussion has been a vision of a global pattern, one driven in a large part
by British policies. In exploring these issues, a look to the Middle East
is quite revealing. Extraterritoriality as a semicolonial institution was
in important respects an adaptation of the system of capitulations in
the Ottoman Empire. The capitulations were initially concessions vol
untarily bestowed by the Ottoman Sultan on non-Muslim foreigners.
Extraterritoriality was granted as if the foreign ambassador was the
head of a millet (a recognized religious community within the empire). Both criminal and civil cases among foreigners were to be judged by the foreign representative or his appointee. The capitulations also pro vided for privileges for foreigners trading in the Ottoman realm: rights and conditions of residence, exemptions from some taxes, and so on.
The capitulations were very specifically reciprocal. Non-Muslim Otto man subjects were to be granted privileges in their conduct of trade in
Europe. Failure to provide such reciprocal benefits could lead the sul tan to revoke the capitulation. At the same time, capitulations were
limited to reign of a given sultan and had to be renewed with the
accession of a new sultan.32 This system, which apparently functioned
reasonably well for centuries, was part of the strategy of legal pluralism
30 Benton, Law and Colonial Cultures, esp. pp. 80-114 and 244-252.
31 John K. Fairbank, Trade and Diplomacy on the China Coast; Joseph Fletcher, "The
Heyday of the Ch'ing Order in Mongolia, Sinkiang, and Tibet," in Cambridge History of
China, Volume 10: Late Ch'ing Part I, ed. John K. Fairbank (Cambridge: Cambridge Univer
sity Press, 1978), pp. 375-385. 32 Thomas Naff, "Ottoman Diplomatic Relations with Europe: Patterns and Trends,"
in Studies in Eighteenth Century Islamic History, ed. Thomas Naff and Roger Owen (Carbon dale: Southern Illinois University Press, 1977), pp. 97-103; Nasim Sousa, Capitulatory
Regime of Turkey (Baltimore: Johns Hopkins University Press, 1933), pp. 68-88.
Horowitz: International Law and State Transformation 461
through which Ottoman overlords dealt with the extraordinary diver
sity of their realm.
As the Ottoman regime found itself in a position of weakness in the late eighteenth and nineteenth centuries, it became necessary to grant a growing range of special economic concessions to individual Euro
pean powers. At the same time the problem of extraterritoriality was
exacerbated by foreign protection of "prot?g?s"?Ottoman nationals who had received protection from foreign powers by purchase or fam
ily connection. For the most part these were members of the Christian millets. By the mid-nineteenth century these prot?g?s numbered in the millions and constituted the primary activity of foreign courts in the Ottoman realm.33
It was not until the 1830s and 1840s that the capitulations began to be supplemented by a treaty system. In 1840 Great Britain, Austria, Prussia, and Russia agreed as part of a settlement to support the Sub lime Porte against Muhammad Ali and to refrain from seeking out
further special concessions that would be denied to others. In effect this agreement shifted the basis of policy from the capitulatory agree
ments to European model treaty agreements. Nevertheless, conces
sions granted in the capitulations continued in perpetuity under newly signed treaties. In the meantime, the Sublime Porte was expected to
observe treaties very closely.34 By i860 similar unequal treaty arrangements were securely in place
in China and Siam. The treaties with the Qing Empire signed between
1842 and i860 established extraterritoriality and related arrangements that formed the framework of the treaty system until the mid-twenti eth century. The Bowring Treaty brought a similar situation to Siam.35 In both cases, as in the Turkish example, the British and other foreign powers used the introduction of the treaty framework as a fundamen tal element of their diplomatic operations. Conversely, adherence to treaties?an important aspect of international law?was taken to be a
crucial part of the responsibilities of an indigenous state. There was a profound irony here. Extraterritoriality clearly contra
vened basic principles of European international law that asserted that
33 Sousa, pp. 89-102.
34 Thomas Naff, "The Ottoman Empire and the European States System," in The
Expansion of International Society, ed. Hedley Bull and Adam Watson (Oxford: Clarendon
Press, 1984), pp. 162-169. 35
While not on the same scale as Ottoman Turkey, both had prot?g? problems as well. Siam had disputes with France over French claims for consular jurisdiction over French colonial subjects (defined very generously by France), while in China foreign missionary efforts to protect their converts were fundamental to disputes over missionary activity.
462 JOURNAL OF WORLD HISTORY, DECEMBER 2004
states are equals in diplomatic ceremony and share fundamental rights of independence (e.g., sovereignty) and self-defense. The first edition
of Henry Wheaton's Elements of International Law clearly identifies the
"exclusive power of civil and criminal legislation ... is an essential
right of every independent state."36 Similarly, "every sovereign state
has the exclusive right of regulating the proceedings in its own courts
of justice."37 Only toward the end of the chapter on "rights of inde
pendence" does the possibility of extraterritoriality (as applied to rela
tions between Christian and Muslim states) come up, and here it is an
exception to the natural state of affairs, voluntarily agreed to by two
parties.
The treaty agreements in Turkey, China, and Siam could not be jus tified if international law were still understood to be rooted in natural
law. The argument that they did not meet the "standard of civilization" was therefore an essential legal doctrine to support unequal treaties and
the semicolonial system in general, and extraterritoriality in particu lar. What "civilization" involved was not particularly clear; it included
(ironically enough) adherence to international law through fulfill ment of treaty obligations and the emerging international standards on the conduct of war, maintenance of diplomatic relations according to European standards, maintenance of social stability and protection of foreign nationals, and development of an "acceptable" legal code
and legal system. This "standard" offered the prospect that the unequal treaties could be revoked if the subject states played according to
European rules.38
One of the most important ways in which nineteenth-century
European international law and the unequal treaty system that embod
ied it influenced semicolonial states was through the promulgation of new legal codes. These were a direct answer to the justification of
extraterritoriality as an inevitable response to unjust and brutal legal systems in non-Christian states.39 The first example of this came dur
ing the Tanzimat reforms in Turkey and involved an effort to put into
practice commitments already made to the European powers and
announced in the famous 1839 and 1856 Tanzimat decrees. These
included a guarantee to ensure to Ottoman subjects "perfect security
36 Wheaton 1836, p. 98.
37 Ibid., p. 105.
38 Gong, esp. pp. 54-81.
39 For a late and very vigorous defense of extraterritoriality on this basis see former
U.S. Minister to China Charles Denby's "Extraterritoriality in China," American Journal of International Law 18.4 (1924): 667-675.
Horowitz: International Law and State Transformation 463
for life, honor and fortune" in the former and granting of full tolera
tion to non-Muslim minorities in the latter.40 Both posed challenges since to this point law in the Ottoman Empire had been based on
three elements: Islamic law (sharia), community custom, and the Sul tan's decree. Customary law in particular was extremely diverse, as the
Ottoman rulers did not try to impose Turkish law on non-Turkish
Muslim communities and allowed religious minorities to continue to use their own legal systems when Muslims were not involved. While
customary law (and in some places Islamic law) dealt with business
practices and civil disputes, there was no civil or commercial code that
Europeans recognized as functional or legitimate. Beginning in the
1840s elements of European-style penal and commercial law were
incorporated into the already complex Ottoman legal system. During the i86os and 1870s, systematic efforts were made to adapt French civil law to Ottoman circumstances, and in 1867 the Grand Vizier Ali
Pasha proposed that the Code Napol?on be applied to disputes involv
ing Muslims and non-Muslims. Ultimately, while they drew on French
influences, the reforms instituted remained within the traditions of
Turkish and Islamic law.41
In Siam as well, legal reform quickly appeared on the agenda dur
ing the reign of Mongkut's successor Chulalongkorn (r. 1868-1910).
Foreign observers sharply criticized the indigenous Siamese court sys tem and the lack of separation of judicial from administrative func tions. According to British diplomat W. Gifford Palgrave, in 1881 there
was under the existing system "no distinct provision whatsoever for the administration of law and justice throughout Siam" and indeed "no judicial or legal institution, in the proper sense of the word, can
find a place."42 Palgrave concluded that until the legal system "is
40 For translations of these edicts see J. C. Hurewitz, ed., Diplomacy in the Near and Middle East: A Documentary Record, 1535-1914 (Princeton, N.J.: Von Nostrand, 1956), pp.
113-116, 149-153. The quote is from p. 114. 41
My discussion draws from the following sources: Esin Orucu, "The Impact of Euro
pean Law on the Ottoman Empire and Turkey," in European Expansion and Law: The Encounter of Indigenous Law in 19th and 20th Century Africa and Asia, ed. W J. Mommsen and J. A. De Moor (Oxford: Berg, 1992), pp. 39-58; Findley, Ottoman Civil Officialdom, pp. 31-32; Davison, pp. 251-256; Bernard Lewis, The Emergence of Modern Turkey, 2nd ed.
(Oxford: Oxford University Press, 1968), pp. 118-119, 122-123. Nathan]. Brown suggests that the new, French-influenced legal codes that spread through the Middle East did not
simply replace Islamic law, but rather narrowed the range of issues in which Islamic courts were used for personal law; see Brown, uSharia and State in the Modern Muslim Middle
East," International Journal of Middle East Studies 29.3 (1997): 359-376. 42 W Gifford Palgrave, "Report on the Present Administration of the Kingdom of
Siam," in British Documents on Foreign Affairs: Reports and Papers from the Foreign Office
464 JOURNAL OF WORLD HISTORY, DECEMBER 2004
reformed, or rather created, no sane mind can contemplate for an
instant any relaxation of the existing Treaty rights of foreigners to
extra-territorial jurisdiction in Siam."43 Efforts to reform the legal sys tem began with an 1874 decree freeing those born into slavery at age 21, the first of a series of efforts to end various forms of servitude over
the next 30 years.44 In 1892 a Ministry of Justice was formed. The pre
siding minister, the European-educated Prince Rabi (son of Chula
longkorn), initiated a systematic revamping of the penal code and court system, dealing with criminal, civil, and commercial law with
the help of French and Belgian legal advisors. Not surprisingly, given his continental advisors, Prince Rabi's reforms drew on the Code
Napol?on and continental European law as a model.45 David Wyatt argues that the legal reforms had a dual purpose: not only were they aimed at foreigners and an effort to end extraterritoriality, but they
were also part of Chulalongkorn's effort to centralize judicial power in
the hands of his administration in Bangkok.46 In China the post-1900 New Policy reforms saw a thoroughgoing
reform of the legal structure. A commission lead by a British-trained
lawyer, Wu Tingfang (who mostly served as a figurehead), and a dis
tinguished Chinese legal scholar, Shen Jiaben, drew up a new legal code with the aid of Japanese legal advisors. The reformed code elim
inated the use of "cruel punishments," such as the use of torture to
extract confessions, and excessively brutal forms of corporal and capi tal punishment. At the same time the Qing regime instituted initial
efforts to establish commercial and corporate law.47 While this has
usually been seen as simply an effort to end extraterritoriality by adopt
ing European standards, Jerome Bourgon argues that the abolition of
"cruel punishments" drew as much on indigenous movement within
Chinese legal scholarship as it did on foreign influences.48
Confidential Print, part i, series E, vol. 27, ed. Ian Nish (Frederick, Md.: University Publi
cations of America, 1995), p. 25. 43
Palgrave, p. 26. 44 David K. Wyatt, The Politics of Reform in Thailand: Education in the Reign of King Chu
lalongkorn (New Haven, Conn.: Yale University Press, 1969), pp. 51-52. 45
Gong, pp. 222-224. 46
Wyatt, Thailand, p. 210. 47 The standard work is Marinus J. Meijer, The Introduction of Modern Criminal Law in
China. See also Douglas Reynolds, China 1898-1912: The Xinzheng Revolution and Japan
(Cambridge, Mass.: Council on East Asian Studies, Harvard University, 1993), pp. 179
185. On corporate law see William C. Kirby, "China Unincorporated: Company Law and
Business Enterprise in Twentieth-Century China," Journal of Asian Studies 54.1 (1995):
44-48. 48
Jerome Bourgon, "Abolishing 'Cruel Punishments': A Reappraisal of the Chinese
Roots and Long Term Efficiency of the Xinzheng Legal Reforms," Modern Asian Studies 27.4
(2003): 851-862.
Horowitz: International Law and State Transformation 465
But new law codes and judicial systems were no quick fix for extra
territoriality and the treaty system. The reports of the annual confer ences of the Association for the Reform and Codification of the Law
of Nations indicate that among legal scholars there was considerable
dispute over the role of international law in mediating relations
between Christian and non-Christian states in general, and specifi
cally the place of extraterritoriality in the international legal order. A
committee appointed in the 1876 meeting to report on this issue con
cluded the following year that relations between the two "great classes
of nations . . . have been on the whole extremely unsatisfactory. The
root of the evil lies in the fact that even such imperfectly defined prin
ciples of international law as exist are not regarded as binding by Christian, in their intercourse with non-Christian states." While it
was "doubtless the duty of civilized governments to employ moral
influence to induce a non-Christian people to reform its laws when
these are characterized by injustice or barbarity," they insisted that use
of force to interfere in a state's affairs was wrong.49
Japanese and Chinese representatives articulated their concerns
about extraterritoriality in subsequent meetings, but were unable to
make much progress in the European-dominated association. In the
1879 meeting G. A. van Hamel of the Dutch Ministry of War suggested that extraterritoriality in China and Japan could be abolished only if a range of conditions were fulfilled, including the adoption of West
ern-style law codes, the implementation of these codes throughout the
country, and the formation of courts that are "independent, impartial and composed of scientific jurists." Curiously, he added that free trade
must also be established throughout the country?even though free
trade had no special role in the principles of international law. Even if
the necessary legal instruments were put in place, Christian states
must, he insisted, retain the right to resume the extraterritorial system in the event that the Asian state backslid and sought to eliminate
these reforms.50 Even among the relatively idealistic community of
international lawyers, support for extraterritoriality remained strong. It was only on the eve of the Sino-Japanese War in 1894 that the
British relented and agreed to forego extraterritoriality in Japan. After
the war firmly established the military power of Japan, the other Euro
49 Association for the Reform and Codification of the Law of Nations, Report of the
Fifth Annual Conference Held at Antwerp, 30 August to 3 September 1877 (London: William
Clowes and Sons, 1878), p. 58. 50 Association for the Reform and Codification of the Law of Nations, Report of the
Seventh Annual Conference held at the Guildhall, London, 11-16 August 1879 (London: Wil
liam Clowes and Sons, 1880).
466 JOURNAL OF WORLD HISTORY, DECEMBER 2OO4
pean states and the United States followed suit. In Turkey, after the
Ottoman regime took advantage of World War I to abrogate the capit ulations, the victorious allies did not accept the new state of affairs.
Nevertheless, subsequently the Turkish Nationalist forces succeeded not only in overthrowing the remains of the Ottoman regime, but also in driving out foreign forces that sought to intervene. This cleared the
way for the formal end of the capitulations. Unable to scrape up the
political will or military force for further intervention, the European powers recognized the new Turkish government and reluctantly signed the Treaty of Lausanne in July 1924, which ended foreign legal privi
leges in Turkey.51 China was able to chip away at extraterritorial
arrangements, with popular Chinese nationalist movements demoniz
ing the treaty system in general and extraterritoriality in particular. But the system was only finally eliminated as a by-product of the
alliance with the United States and Britain against Japan during World
War II.52 Military might?and conversely the relative military decline
of European imperial powers?proved a more effective route to inter
national recognition than legal argument. Only Siam, which managed to undo extraterritoriality through a process of quiet diplomacy in the
1920s, can be said to have succeeded in supplanting this system
through domestic legal reform, and only after World War I dramati
cally weakened British and French ability to project power on a global scale.53
Central Government Administrative Reform
A second area in which we can see the parallel development of the
three states in response to the treaty systems is in the adaptation of
European patterns of central government ministries and ministerial
government. A major concern of European imperial powers related to
the efficacy of the organs of the semicolonial state?particularly the
maintenance of order (essential for trade to flourish and for the safety of foreigners) and the proper management of foreign relations. Euro
pean and American diplomats expected a tolerably efficient foreign
ministry, manned by individuals of social and political prominence with at least some familiarity with foreign languages and customs.
Equally important, the foreign ministry was expected to be one of a
51 Sousa, pp. 177-249; Gong, pp. 115-119.
52 Fishel, passim.
53 Gong, pp. 230-237; Sayre, pp. 70-88.
Horowitz: International Law and State Transformation 467
handful of prominent, functionally defined central government depart ments. Ministers in charge of each department were to play a primary role in defining and implementing central government policies. This
system of ministerial or cabinet government was accepted practice in
Europe by the age of Napoleon. It formed the standard by which Euro
pean and American representatives judged semicolonial states.54 Indig enous state administrative institutions in Qing China, the Ottoman
Empire, and Siam failed to meet this test in the early nineteenth
century.
Not surprisingly, developing organizations to efficiently manage for
eign relations and create a body of diplomatic specialists was an early
priority. The Ottoman regime, facing growing diplomatic demands in
the late 1700s and early 1800s, first created a translation bureau, which
gradually evolved into a full-fledged foreign ministry?the first part of
the dramatic expansion of the civil bureaucracy from an estimated two
thousand officials to some thirty-five thousand.55 In the aftermath of
the Second Opium War the Qing dynasty created the Zongli Yamen.
While it was a powerful organization in the 1860s and 1870s, it was
not organized on a European pattern. Through its interpreters school
it trained a corps of young diplomats and translated international law
treatises as well as works on science and geography into Chinese. But
when the Yamen's leadership changed in the 1880s and it became far more ant ?foreign in its orientations, a chorus of complaints from Euro
pean and American diplomats followed. After the Boxer crisis, at the
demand of the foreign powers, the Zongli Yamen was transformed into
the Ministry of Foreign Affairs and given new prominence in the Qing state structure.56 In Siam, the management of foreign affairs had been
part of the duties of the Krom Phra Khlang, a ministry that combined
the administration of trade, revenue, and foreign affairs as well as
control over some provincial territory. In 1885, King Chulalongkorn created a Department of Foreign Affairs, and it became a full-fledged
ministry a few years later.57 In other words, none of these states
54 By the mid-nineteenth century the ministerial system?in various forms?was so
universal that it was rarely mentioned and its benefits were assumed to be inarguable; see,
e.g., Theodore Woolsey, Political Science or the State Theoretically and Practically Considered
(New York: Scribners, 1889) 2: 281. 55
Carter Findley, Ottoman Civil Officialdom: A Social History (Princeton, N.J.: Prince ton University Press, 1989), pp. 22-28.
56 On the Zongli see Yamen Horowitz, "Central Power and State Making: The Zongli Yamen and Self-Strengthening in China, 1860-1880," Ph.D. diss., Harvard University,
1998. On the reforms from 1901-1906 see Horowitz, "Breaking the Bonds of Precedent." 57 William J. Siffin, The Thai Bureaucracy: Institutional Change and Development (Hono
lulu: East-West Center, 1966), pp. 56, 60.
468 JOURNAL OF WORLD HISTORY, DECEMBER 2004
responded by immediately adopting a European model, but gradually moved in that direction.
Partial measures or the innovative use of indigenous institutions
generally would not do the trick. Foreign estimations of non-European government institutions and patterns were at times acerbic. British
diplomat Gifford Palgrave declared that "Siam is nominally, and by an
abuse of European words and phrases, a Kingdom, with a King, Minis
ters, Government, &c; in reality it is an extensive slave estate, some
what unequally divided between four proprietors."58 Sir Edmund
Hornby, who had reformed the British consular courts in the Ottoman
Empire and was sent to do the same in China, was remarkably unim
pressed by the Zongli Yamen, the new Qing foreign office organized fol
lowing Qing patterns for a central government ministry. He believed
that it was deliberately placed in an uncomfortable building in an iso
lated location (he was probably right about the first and wrong about
the second). He found Prince Gong, the Yamen's titular leader, "rude"
and "impertinent" and the other Yamen ministers "were all old men
and looked and behaved extremely like old women. ... I am bound to
say they seemed to talk a great deal of nonsense and to take up a great deal of time about doing it."59 While these may be extreme examples,
they do point to the fact that foreigners were not inclined to accept
anything that greatly deviated from a familiar institutional model.
In the end, something approaching a modern ministerial cabinet
system came into being in all three states. The climax of the Tanzimat
reforms in the 1860s and 1870s brought functionally defined central
government ministries and a council of state to Ottoman Turkey.60 In
Siam, beginning in the late 1880s and through the 1890s Chulalong korn initiated a thoroughgoing reform of central government ministries as well, drawing extensively on Western models, appointing as minis
ters princes with at least some foreign education and hiring a range of
foreign advisors.61 In China the New Policy Reforms culminated in
the 1906 reforms of the central government ministries. In these reforms
58 Palgrave, p. 32.
59 Edmund Hornby, Sir Edmund Hornby, An Autobiography (Boston: Houghton Mifflin,
1928), p. 234. 60
Davison, pp. 239-244. Findley, Bureaucratic Reform, pp. 162-190, discusses several
ministries in detail. Richard Chambers, "The Civil Bureaucracy: Turkey," in Political Mod
ernization in Japan and Turkey, ed. Robert E. Ward and Dankwart A. Rustow (Princeton,
N.J.: Princeton University Press, 1964), pp. 318-322. 61 For a general account see Siffin, pp. 42-63; for a more sophisticated analysis of the
role of foreigners see Ian Brown, "British Financial Advisers in Siam in the reign of King
Chulalongkorn," Modem Asian Studies 12.2 (1978): 193-215.
Horowitz: International Law and State Transformation 469
the expansion of the administrative model of the Ministry of Foreign Affairs was applied to other ministries, and functionally defined depart ments were created along European lines?a product of a conscious
effort to examine the benefits of Western institutional models.62 It is important to recognize that foreign pressure was not the only
cause of change. In China, the creation of the Zongli Yamen in 1861, while welcomed by foreign diplomats, was also a vehicle for a group of
officials associated with Prince Gong to assert a position of authority.
By the same token, the memorials that reformers wrote surrounding the 1906 reforms focused on the potential for the European minister
ial models of organization for solving problems endemic to the Qing
bureaucracy.63 Similarly, we can see the administrative reforms in
Siam as expressing Chulalongkorn's desire to centralize power in Bang kok, particularly under the central control of the throne. The sec
ondary literature on the Tanzimat reforms is less clear, but it seems
plausible to suggest that the central government reforms of the Tanzi mat era were at least in part aimed at strengthening the hand of the
civil bureaucracy vis-?-vis the military (which had been a major obsta
cle to reform in and earlier period) and the religious establishment.64
State Finances
A third area in which treaty relations influenced administrative insti
tutions in all three states was state finances. Generally speaking, for
eign pressure came from two directions. First, the treaties in all cases
structured relations to promote international trade by seeking to limit tax rates and eliminate arbitrary fees and corruption on imports and
exports. Semicolonial states therefore faced constraints on the kinds
of commercial tax and commercial tax policies they could implement and were pressured to reform existing systems of taxation that British
representatives saw as constraints to trade. Second, the Ottoman
Empire and later Qing China contracted huge foreign debts, and both were forced to agree to expanding foreign control of state revenue
and financial institutions. It was well established in international law
that a state could not simply renege on a loan from private individu
als at home or abroad except in special circumstances, and close links
between financiers and political leaders in London and Paris produced
62 Horowitz "Breaking the Bonds of Precedent," pp. 789-796. 63
Ibid., passim. 64
Findley in Bureaucratic Reform argues that the civil bureaucracy was rising relative to other parts of the Ottoman state during the nineteenth century.
470 JOURNAL OF WORLD HISTORY, DECEMBER 2004
strong imperial actions to ensure repayment of loans. The invasive nature of the foreign debt collections seriously constrained the auton
omy of semicolonial states.
Imposing limits on taxation on international trade was part and
parcel of the free trade regime of the British Empire in the mid- to late
nineteenth century.65 In the eyes of British officials in the mid-nine
teenth century, opening the gates to trade was of fundamental impor tance. In 1838, in the Anglo-Ottoman commercial treaty of Balta
Liman, the Ottomans conceded what amounted to free trade: duties were set at 5 percent on imports, 12 percent on exports, and 3 percent on transiting goods. The Ottomans also agreed to the abolition of all
monopolies (a measure aimed more at Egypt, still perceived as part of
the Ottoman realm). While modifications were made to make the sys tem less injurious to Ottoman exports, the free trade regime remained in place until the end of the empire and resulted in rapid increases in
foreign aid.66
Again, the Ottoman precedent set the stage for what would occur
farther east. Infamously, the Opium War in China was fought under
the auspices of free trade: the settlement not only reopened opium
imports, but also abolished the monopoly of the foreign trade guild known as the Cohong, and sought to bring customs rates under con
trol. The Second Opium War sought to strengthen the enforcement of a free trade regime in the late 1850s; subsequently the Qing establish
ment of the foreign-manned Imperial Maritime Customs Service insti
tutionalized the free trade element of the treaty system within the
Qing state itself.67 In Siam, the opening of trade was the central goal of Sir John Bowring's mission: he forced a limitation of import duties to 3 percent and export duties to 5 percent, and the abolition of com
modity and trading monopolies with the exception of opium.
65 The classic work of John Gallagher and Ronald Robinson, "The Imperialism of Free
Trade," inspired decades of discussion about the causes of the "new" imperialism, but their
assertion that the free trade regime was central to Britain's mid-century informal empire remains unchallenged. See the original article and its critics and elaborations in Wm. Roger
Louis, ed., Imperialism: The Robinson and Gallagher Controversy (New York: New Viewpoints,
1976). 66
Findley, Ottoman Civil Officialdom, pp. 28-29; Charles Issawi, ed., Economic History
of the Middle East: A Book of Readings (Chicago: University of Chicago Press, 1966), pp.
38-40. 67 Fairbank's Trade and Diplomacy remains the classic analysis of British and Chinese
diplomacy. More recently, Wong, Deadly Dreams, deals with the origins of the Arrow War, and a good recent discussion of the customs service is Hans van de Ven, "The Onrush of
Modern Globalization in China," in Globalization inWorld History, ed. A. G. Hopkins (New York: W W. Norton, 2002), pp. 177-187.
Horowitz: International Law and State Transformation 471
To British representatives at midcentury, the benefits of free trade were unquestioned. As Bowring wrote to Mongkut's heir apparent, "Your Majesty's sagacity cannot fail to appreciate how rapidly the
friendly trading relations of one country with another tend to develop the riches and strength of each."68 Nevertheless, it must be pointed out
that the free trade regime was not standard practice in Europe. The
imposition of these demands was a direct contradiction of principles of international law that allowed states the right to administer trade
and taxes as they chose. But once these were integrated into properly
signed and ratified treaties, they became instruments of international
law that were vigorously policed by British diplomats. The impact of the free trade regime on the revenues of semicolo
nial states were varied. Qing China and the Ottoman Empire were
dependent primarily on agriculture-based taxes, and it was only begin
ning in the mid-nineteenth century that trade became a key source of revenue. In China before 1861, revenues on foreign trade went into
the coffers of the imperial household department and were not ordi
narily available for more general use. The introduction of the foreign manned Imperial Maritime Customs service, which reported to the new foreign office (the Zongli Yamen) in Beijing, was a windfall for
the Qing state, playing a major role in financing military reforms and
modernization from the mid-1860s until the outbreak of the Sino
Japanese War in 1895.69 The Ottoman case seems similar. While the
onrush of foreign imports may indeed have done much harm to sectors
of industry in the Ottoman realm, there is little evidence that the free
trade regime did much harm to state finances. The expanding use of
commercial taxes kept the Ottoman Empire financially afloat, with customs revenues playing a particularly important role.70
But Siam was a different story. Where the Qing and Ottoman
Empires had depended primarily on revenues on agriculture in the early nineteenth century, the Siamese state depended on tax farming and
monopolies related to commerce, as well as corv?e labor demanded
from rural farmers. The Bowring Treaty abolished the commodity
monopolies and internal trade taxes that had been a mainstay of state
revenues, and appeared to hurt the leading princes and the ethnic Chi
68 Bowring, 2: 439-440.
69 For a breakdown of the use of customs revenues, see Tang Xianglong, Zhongguo jindai
haiguan shuishou he fenpei tongji (Beijing: Commercial Press, 1992). The analysis is drawn
from Horowitz, "Central Power and State Making," chap. 4. 70 Stanford Shaw, "The Nineteenth-Century Ottoman Tax Reforms and Revenue
System," International Journal of Middle East Studies 6.4 (1975): 421-459.
472 JOURNAL OF WORLD HISTORY, DECEMBER 2OO4
nese merchants who controlled the monopolies. In the end, the rev enue base of the Siamese state shifted toward excises on spirits, opium,
gambling, and the lottery, as well as the customs duties set by treaty. Corv?e labor was at first informally replaced with payments, and later
formally replaced by a head tax. Within that context, tax farming per sisted as a mode of administration. While the central government became directly involved in tax collection in the 1890s, even then tax
farms remained; much to the dismay of King Chulalongkorn and finan
cial reformers, eliminating the tax farms on opium, gambling, lottery, and liquor proved fiscally impossible.71 A major problem for the Sia
mese government were the restrictions the treaty system placed on
altering commercial taxes?Britain and other foreign powers resisted
Siamese requests for revision. Beginning around 1870, Siamese rice
exports expanded rapidly, stimulating an expansion of land used for
rice farming. Import tax rates of 3 percent were low (certainly com
pared with China and the Ottoman Empire), and duties on exports were fixed at the 1855 currency rate, even as the value of the baht
declined over the following thirty years. According to Hong Lysa, in
1900 the customs and inland transit taxes produced less than 15 per cent of total revenues. Direct taxes?land and capitation taxes?were
less than 10 percent of total revenues in 1892 and rose only slowly thereafter.72 In short, while the treaty system certainly encouraged economic expansion in the second half of the nineteenth century, it
placed significant constraints on the growth of state revenues.
While the free trade regime was the most obvious economic base
of the semicolonial system, the most direct impact on both the Otto man and Qing states came from foreign debts. As debts rose, foreign
diplomats and creditors demanded more invasive measures to secure
repayment. In this case they had international law on their side. While
Europe had a long and rich history of unpaid public debts, this was not
71 There has been some debate on the impact of the Bowring Treaty. Wyatt, Thailand,
pp. 184-185 (which fits with Bowring's claims) is harshly criticized by B. ]. Terwiel, who
argues that there is evidence to suggest that the existing taxes persisted for at least a decade
after the treaty. See "The Bowring Treaty: Imperialism and the Indigenous Perspective," Journal of the Siam Society 79.2 (1991): 40-47. But at issue here seems to be the speed of
changes rather than their basic direction. Hong Lysa, Thailand in the Nineteenth Century: Evolution of the Economy and Society (Singapore: Institute of Southeast Asian Studies,
1984), pp. 75-131, presents a detailed treatment of the tax farming system and efforts to
reform it. 72
Hong Lysa, pp. 125-129; James Ingram, Economic Change in Thailand, 1850-1970 (Stanford, Calif.: Stanford University Press, 1971), pp. 175-182. On the rise of Siamese
rice exports see Ingram, chap. 3.
Horowitz: International Law and State Transformation 473
reflected in theories of international law. Vattel strongly endorsed the
state's responsibility to repay loans: "loans made for the needs of the
State, debts incurred in the administration of public affairs, are strictly
legal contracts and are binding upon the State and the whole Nation.
Nothing can release the Nation of the obligation of discharging such
debts."73 Europeans took this very seriously indeed and used diplo matic pressure to encourage foreign loans, then used debts to extract
greater financial concessions. In Egypt, loan defaults became an excuse
for direct British intervention. While the resolution was not so drastic, the politics of foreign debt dramatically increased foreign influence in
both the Ottoman Empire and Qing China.74
During the 1850s, 1860s, and 1870s, the heyday of the Tanzimat
reforms, the Ottoman regime turned to foreign loans to help pay for
military expenses, budget deficits, and, increasingly, debt service. The
Russo-Turkish conflict of 1877-1878 brought things to a crisis, and in
1881 an agreement between the Sublime Porte and foreign creditors
created the Public Debts Administration to manage the debt crisis
and reestablish Ottoman access to credit abroad. The Public Debts
Administration was foreign controlled and foreign run, and, through control of major portions of Ottoman revenue, constituted an enor
mous incursion on Ottoman sovereignty.75 In China, early loans were quite modest in size and guaranteed
with customs revenues. They were used reasonably carefully to spread the cost of fighting internal rebellions and preparing against foreign threats. Foreign debt became a serious problem only after 1895, when
the immense indemnity from the war with Japan had to be financed
with an international loan and required mortgaging the customs rev
enues and expanding the foreign customs service to oversee taxation
of "native customs" on the still-flourishing coastal junk trade.76 Here
73 Vattel, p. 186.
74 In an important re interpretation, P. J. Cain and A. G. Hopkins, British Imperialism, 1688-2000, 2nd ed. (New York: Longman, 2000), argue that the role of financial services
was ultimately more important than that of trade in driving British imperialism. Moreover
they point to the close links between the financial elites of the city and Britain's political elite in influencing British imperial policy. See especially their treatment of China and the
Ottoman Empire, pp. 340-351, 360-380. 75
Rafii-Sukru Suvla, "The Ottoman Debt, 1850-1939" in Issawi, Economic History of the Middle East, pp. 95-106; Donald Blaisdell, European Financial Control in the Ottoman
Empire (New York: AMS Press, 1966). 76 On loans see the massive documentary compilation Zhongguo renmin yin hang
zonghang can shi shi, comp., Zhongguo Qingdai waizhai shi ziliao, 1853-1911 (Beijing: Zhong guo jinrong chubanshe, 1991). The takeover of native customs is treated in Stanley F.
Wright, Hart and the Chinese Customs (Belfast: 1949), pp. 745-753.
474 JOURNAL OF WORLD HISTORY, DECEMBER 2OO4
after foreign debt became an albatross on the necks of Qing statesmen
and their Republican successors. States needed money and foreigners
always seemed willing to make loans, but only for further investment
and revenue concessions. After the fall of the Qing in 1912, Yuan Shi
kai's government contracted the infamous Reorganization Loan, which
turned the salt monopoly over to a foreign administration. In any event, foreign debts forced the Qing to reexamine the revenue system and begin to move toward a system of modern budgeting.77
In Siam under Mongkut and Chulalongkorn, the government
wisely avoided foreign loans, perhaps seeing the results of European finance in Egypt and the Ottoman Empire. While foreign trade with
Siam grew rapidly beginning in the 1870s, it was still quite modest, dominated by rice exports and imports of manufactured goods. Only with the growth of the teak cutting industry did British enterprise move much outside of Bangkok, and compared with China and Turkey
it was not seen as much of a prize by British financiers.78 Meanwhile, the new Ministry of Finance, created with foreign advice, was con
cerned with establishing sufficient clarity of budgeting to enable the
contraction of foreign loans for major investments, such as railway
building. The hiring of a few high-profile foreign advisors to the new
Ministry of Finance was also seen as helping to enable the Siamese gov ernment to contract foreign loans. But this occurred only after 1900 and on a comparatively small scale.79
To sum up this long section, the treaty systems imposed on semi
colonial states had important implications for the transformation of state institutions. First, extraterritoriality offered incentives for the
development of European-style law codes and judicial institutions.
Second, foreign expectations of "normal" diplomatic relations and
pressure to establish "effective" systems of government encouraged the
Ottoman Empire, Qing China, and Siam to create "modern" foreign ministries and move in the direction of a ministerial structure of cen
tral government. The imposition of a free trade regime for better or
77 Hans J. van de Ven, "Public Finance and the Rise of Warlordism," Modem Asian
Studies 30.4 (1996): 829-868 tries to untangle financial history in the early twentieth
century. 78 On the general patterns, see Ingram, passim. On British investment see Malcolm
Falkus, "Early British Business in Thailand," in British Business in Asia Since i860, ed. R. P. T.
Davenport-Hines and Geoffrey Jones (Cambridge: Cambridge University Press, 1989), pp.
116-156. 79 Ian Brown, "British Financial Advisers in Siam in the Reign of King Chulalong
korn," Modern Asian Studies 12.2 (1978): 193-215.
Horowitz: International Law and State Transformation 475
worse constrained the systems of taxation in each of these three states, in some respects proving to be a boon and in others forcing reform. The
insistence on free trade had to be respected, but on the other hand, even with treaty limits, trade taxes often constituted a valuable new
source of revenue for states, such as Qing China and the Ottoman
Empire, that had depended on agricultural revenues. At the same time,
foreign loans did tend to result in greater foreign involvement in the
financial management of semicolonial states.
Interstate Simplifications: International Law
and the Territorial State
Treaty systems were an obvious manifestation of European power over
indigenous Eurasian states, but international law also played an impor tant role in a more subtle and enduring phenomenon: the emergence of the territorially defined sovereign state as the key participant in
international society. Before the nineteenth century, Siam, Qing China, and the Ottoman Empire were all complex, compound states
in which external boundaries were poorly defined, and near the fron
tier the use of indirect rule and suzerain "tributary" relationships with
local power holders were common. While this would have seemed
familiar in late medieval and early modern Europe, the situation had
changed over time. Intense competition between states led them to
seek territory that was defensible and from which resources could be
extracted. Linear boundaries slowly replaced vaguely defined border zones as states sought to define precisely the extent of their sovereign
domain.80
In the nineteenth century, as the global map was redrawn with a
European pen, semicolonial states had to adapt to European ideas
about the expression of power over space. This European map pre sumed that the world should be organized into territorially discrete states defined by linear boundaries. It also increasingly favored the
establishment of states that could be identified with a specific "nation."
80 On the relationship between the emergence of national states and the demarcation of boundaries see Jeremy Black, "Boundaries and Conflict: International Relations in ancien
regime Europe," in Eurasia: World Boundaries, ed. Carl Grundy-Warr (London: Routledge,
1994) 3: 19-54. Peter Sahlins, Boundaries: The Making of France and Spain in the Pyrenees
(Berkeley: University of California Press, 1989), suggests that the process of establishing linear boundaries was slower than a traditional political narrative would suggest.
476 JOURNAL OF WORLD HISTORY, DECEMBER 2OO4
This new map represented a desire on the part of both European statesmen and international lawyers to simplify the formulation of
legitimate political power across the globe: an analogue to what James Scott describes as "state simplifications" imposed by high modernist
states in the twentieth century.81 In much the same way as Scott sees
modern states instituting a variety of measures to make complex soci
eties less differentiated and more "legible," the rise of the territorial state simplified the global map. By dividing the world into neat terri
torial states each inhabited by a single "nation"?i.e., a group of peo
ple with a shared identity?the territorial state simplified geography and the problems of controlling people and resources. But it did so by
obscuring ethnic differentiation within states (hence the need to
invent national identities to fit diverse nations), ignoring both the
complex relationships among political power holders and the social,
economic, and cultural networks that transcended linear boundaries.
International law texts point to the growing importance of terri
tory in the conception of statehood in the nineteenth century. In the
1750s Vattel wrote that "A Nation or a State is ... a political body, a
society of man who have united together and combined their forces in
order to procure their mutual welfare and security." The state is
defined as a group of people, not as a territorial domain. While states
or nations have territory, this is a secondary characteristic.82 Wheaton
in 1836 likewise does not identify territory as one of the defining char
acteristics of a state, although he does seem to assume in other sections
that states have territory.83 The revised 1855 edition is far more
explicit: "a state is .. . distinguishable from an unsettled horde of wan
dering savages not yet formed into a civil society. The legal idea of a
state necessarily implies that of the habitual obedience of its members
to those persons in whom the superiority is vested, and of a fixed abode, and definite territory belonging to the people by whom it is occu
pied."84 Yale University president Theodore Woolsey's Introduction to
the Study of International Law, first published in i860, was even more
clear, inserting the territorial element into his definition of a state: "A
state is a community of persons living within certain limits of territory, under a permanent organization, which aims to secure the prevalence
81 James Scott, Seeing Like a State: How Certain Schemes to Improve the Human Condi
tion Have Failed (New Haven, Conn.: Yale University Press, 1998), esp. pp. 11-83. 82
Vattel, p. 11. For his treatment of territory see pp. 138-143. 83 Wheaton 1836, p. 51. 84
Henry Wheaton, Elements of International Law (Boston: Little & Brown, 1855),
p. 28.
Horowitz: International Law and State Transformation 477
of justice by self-imposed law." Similarly, he defines sovereignty as "the
uncontrolled exclusive exercise of the powers of the state" that is
"supreme within a certain territory."85 Where earlier works on inter
national law dealt extensively with conceptions of limited sover
eignty, protectorates, and so on, by the 1860s these were (literally) no
more than footnotes.
International law was important to the emergence of the territor
ial state in other ways as well. Boundaries were the subjects of agree ments, usually treaties, among states. Those treaties were regarded as
law, binding on the signatories. In the event of a change of government or a revolution, the new government takes on the legal obligations of
its predecessor; that is, it is expected to observe international agree ments signed by its predecessors and to continue to pay sovereign debts.
Applied to the issue of boundaries, this means that a new government, indeed a new state, is expected to inhabit the same territory as its pre
decessor. This has meant that the territory of states created by the
retrocession of colonies perpetuates the colonial borders.86
There is an important consequence to these principles: space is
crucial to the definition of a state, and once boundaries are demarcated
it is extraordinarily difficult to alter them. Boundaries are inscribed
both on paper and on the ground with boundary markers. Invasions,
rebellions, and even long-term occupations do not destroy the bound
ary as a concept or a political instrument, at least within the concep tual universe of international law.
For large Eurasian states such as Siam, Qing China, and the Otto man Empire, the division of the world into these discrete spaces into
which "nations" were supposed to fit posed obvious challenges. None
had particularly well-defined frontiers. The definition of a nation was
problematic. The Ottoman Empire was extraordinarily diverse, with
huge non-Turkish and non-Muslim populations. The Qing Empire was
a Manchu empire, ruled (at least at the top) by an ethnic minority, as
an explicitly multiethnic and multilingual enterprise. The conquests of the late seventeenth and eighteenth centuries had established Qing
political paramountcy in vast areas outside of both Manchuria and
China proper. Siam, while perhaps not quite so complicated, was a
85 Theodore Woolsey, Introduction to the Study of International Law (Boston: James Mon
roe, i860), pp. 81-83. 86 For background and a critical evaluation of the approach of international law to the
boundaries of new states see Steven R. Ratner, "Drawing a Better Line: Uti Possidetis and
the Borders of New States," American Journal of International Law 90.4 (1996): 590-624.
478 JOURNAL OF WORLD HISTORY, DECEMBER 2OO4
kingdom with loosely defined boundaries and significant minority pop ulations. The Tai-speaking peoples, who would form the defining eth nic group of Siam's modern descendant, Thailand, were spread across
much of mainland Southeast Asia and the southwestern borderlands of
the Qing Empire. On the periphery of Bangkok's control were outer
provinces and tributary kingdoms, including the Lao kingdoms in the
north (which were Tai-speaking, but linguistically and culturally different from the core of Siam) and Malay provinces (sometimes described as sultanates) in the south. Siam also had a large and pow erful ethnic Chinese population.87 All three states used indirect rule
by local chiefs in various contexts. Especially on the frontier, it was
not always a simple matter to define whether such local chiefs were
fully independent or not. In these conditions, the construction of
modern territorial states was not a simple task.
In his landmark study Siam Mapped, Thongchai Winichakul
explored how these issues influenced the creation of Siam and Thai
land as geographical entities and contributed to the construction of
Thai identities. He shows how different the indigenous conceptions of
boundaries were from those that the British (and later the French) were imposing on the Kingdom of Siam in negotiations over boundary demarcations. Similarly, he sees the use of shared or overlapping sov
ereignties of Cambodia that accepted the overlordship of both Viet nam and Siam as a logical strategy for survival. The use of tributary relations based on gift-giving contained a fundamental (and useful)
ambiguity?if one side gave tribute to the other (and acknowledged
overlordship) but received larger gifts in return, who was the more
powerful? Flexibility and ambiguity were fundamental to Asian inter
state relations. By contrast, the British and the French, as they sought to define the boundaries of their colonial possessions, were unable to
accept this. They wanted the rigid delineations observed in Europe. In this context, Siamese statesmen gradually learned to play by Euro
pean rules. The elaboration of a new system of provincial administra
tion, directly responsible to the throne, served not only to expand central control and improve administration, but also to assert more
clearly Bangkok's territorial claims.88 Gradually, the boundaries were
demarcated. While the process cost Siam what is said to be 176,000
87 Tej Bunnag, pp. 28-39; G- William Skinner, Chinese Society in Thailand: An Ana
lytical History (Ithaca, N.Y.: Cornell University Press, 1957), pp. 126-154. 88
Thongchai Winichakul, Siam Mapped: A History of the Geo-Body of a Nation (Hono lulu: University of Hawai'i Press, 1994), pp. 62-112.
Horowitz: International Law and State Transformation 479
square miles of territory, or almost half of what it claimed control over
in 1850, by the early twentieth century Siam did have a territorial
domain that would be clearly recognizable to Theodore Woolsey and
other international lawyers.89 In i860 the Qing Empire's situation was in many respects quite
similar to Siam's. It was a state largely without boundaries, at least in
the sense of precisely defined linear boundaries set out in international
agreement. Only the Russian border with Manchuria and Mongolia had been demarcated as a result of the treaties of Nerchinsk (1689) and
Kiakhta (1727). The Manchurian boundary was to be revised under the
i860 Beijing convention, with the Qing reluctantly ceding territory to
the north and west of the Ussuri River. Elsewhere the situation was
much fuzzier. Even the frontier with Korea, the state that had perhaps the most regulated relationship with Qing China, did not have a
boundary in the modern European (linear) sense. The frontier was
understood to be defined by the Yalu and Turnen rivers, but rather
than setting out a linear boundary, both sides tried to maintain an
uninhabited frontier zone to prevent unregulated contacts.90
Again, like Siam, much of the Qing state's involvement in frontier areas was built around the concept of tributary relations and the use of native chiefs ruling non-Chinese populations. In these cases, the nature of Qing power was unclear. Was a tributary a separate state or
a subordinate? Was a native chief the ruler of an autonomous mini
state or a Qing official? In both relationships power was defined more
by jurisdiction over people than over territory. To make the issue still more complicated, Qing policies on the frontier shifted over time,
reacting to changes in strategic outlook and the state's financial situation.91
During the boundary demarcations with Russia in the early 1860s, the officials in the Zongli Yamen faced a particularly difficult situa
tion.92 In 1860-1861 they had a difficult time finding detailed maps of
the remote Ussuri River area in state offices and archives in Beijing, and when they did, officials with experience in that area were impos sible to find. The reality, they eventually concluded, was that the Qing
89 The estimate of territory is from Wyatt, Thailand, p. 208.
90 Qinding da Qing huidian shili (Beijing: 1891), 511: 1-6; Mary C. Wright, "Adapt
ability of Ch'ing Diplomacy: The Case of Korea," Journal of Asian Studies 17.3 (1958): 365. 91 C. Patterson Giersch, "China's Reluctant Subjects: Indigenous Communities and
Empire along the the Yunnan Frontier," Ph.D. diss., Yale University, 1998, thoughtfully describes and analyzes this process on the Yunnan-Burma frontier.
92 The following paragraphs draw on Horowitz, "Central Power," pp. 273-295.
48o JOURNAL OF WORLD HISTORY, DECEMBER 2004
had little control and few interests in that border region.93 But through this process Qing officials soon learned to take these territorial issues
seriously. Preparations for the demarcation of the boundary in Xinjiang two years later were far more organized. The Zongli Yamen began to
systematically collect information about the frontiers and concern
itself with the problems of preventing further territorial losses, and at
the same time recognized the potential value of international law in
diplomatic negotiations. The Zongli Yamen sponsored American mis
sionary W. A. R Martin's translation of the 1855 edition of Wheaton into Chinese. Subsequently, Martin served as the director of the
Yamen's interpreter school and together with his students (many of
whom became diplomats) translated other texts into Chinese. These
works were distributed to provincial officials.94 By the mid- to late 18 70s, Qing officials discussing the Russian occupation of the Yili Val
ley in Xinjiang on a number of occasions referred to international law to support the Qing position. When the unfortunate Qing diplomat
Chonghou, inadequately prepared for negotiations, signed the Treaty of Livadia, which would have obtained a Russian withdrawal at only the price of continued Russian control of the strategically crucial
Muzart Pass, an uproar at court followed, and the Qing regime refused to ratify the treaty.95 In the discussions of the Yili issue, officials fre
quently cited international law in support of their positions. A con
sensus emerged that it would be better to reject the treaty and not recover Yili for the time being than to give in to the Russian demands.
When the diplomatic and military situation was more propitious the issue could be revisited.96
The wily Qing diplomat Zeng Jize seems to have had the situation
figured out most clearly. While posted in London in 1879, in his travel
journal (written for publication) he noted that while the principles of
international law were "not unreasonable," in reality the European treatment of areas like Burma and Vietnam was far less benevolent
than Qing tributary relationships.97 He subsequently describes a con
versation with an international law expert about treaties: "I asked him
93 Chouban yiwu shimo xianfeng (Beijing: Zhonghua shuju, 1980), 7: 2631-2632. 94
Horowitz, "Central Power and State Making," pp. 276-277. 95 For a detailed account and analysis of these events see Immanuel Hsu, The Hi Cri
sis: A Study in Sino-Russian Diplomacy, 1871-1881 (Oxford: Clarendon Press, 1965). 96
Jindai zhongguo dui xifangji lieqiang renshi ziliao, vol. 3, part 1 (Taipei: Institute of
Modern History, Academia Sinica, 1986), pp. 154, 281, 289-292; Qingji waijiao shiliao, 17:
6b-7b; Hsu, The Hi Crisis. 97
Zeng Jize, Shi xi riji (n.p. 1893), 2: 22b-23.
Horowitz: International Law and State Transformation 481
if it was correct to understand that treaties to demarcate boundaries and commercial treaties must be distinguished from one another, because boundary demarcation treaties are fixed for good, while com mercial treaties are easily changed. 'Correct' he replied."98
Zeng's successful negotiation of a Russian withdrawal while retain
ing the existing boundaries ultimately solved the Yili crisis. In an 1887 article published in English, Zeng noted that one of the most impor tant Qing priorities was to place China's vassal states?meaning Xin
jiang, Tibet, and Korea?on a "less equivocal footing" and resist fur ther foreign incursion.99 Zeng understood the realities of the European insistence on linear boundaries and the single-minded emphasis on territorial sovereignty in nineteenth-century international law. Qing officials such as Zeng and their Republican-era descendents learned their lessons well. In spite of its weakness the late Qing state lost lit tle in the boundary demarcations. While Republican China was weak and often threatened, on paper at least those boundaries remained
except for Outer Mongolia. According to William Kirby, under the Nationalist government "the non-recognition of unpleasant realities
in China's border areas was brought to an art form."100 For better or
worse, in terms of territory the People's Republic of China largely mir rors the late Qing state.
In both China and Siam, for all of the painful concessions made in the demarcation process, they established territories that have endured.
Once national territory was defined, national identity was molded to fit that territory. In modern Thailand, with its substantial populations of non-Tai peoples, the boundaries define "Thainess," and even Khmer art from sites within Thailand has been perceived as Thailand's cultural
patrimony.101 In China, the Revolutionary movement of 1901-1911 thrived on Han Chinese ethnic nationalism in opposition to Manchu control. By 1919, with the Manchus gone, Sun Yatsen was declaring that the revolution had achieved only "the negative half of the goal of
nationalism." Now they needed "the Han people to sacrifice the sepa
98 Zeng, 2: 34.
99 Marquis Tseng [Zeng Jize], "China: The Sleep and the Awakening," Chinese Recorder
18(1887): 152. 100
William C. Kirby, "The Internationalization of China: Foreign Relations at Home and Abroad in the Republican Era," China Quarterly 150 (1997): 436. 101
Thongchai Winichakul, Siam Mapped, pp. 163-170. Charles Keyes, "Presidential Address: The Peoples of Asia'?Science and Politics in the Classification of Ethnic Groups
in Thailand, China, and Vietnam," Journal of Asian Studies 61.4 (2002): 1163-1203, empha sizes the political nature of defining ethnic groups in both Thailand and China in the twen tieth century.
482 JOURNAL OF WORLD HISTORY, DECEMBER 2OO4
rate nationality, history, and identity that they are so proud of and
merge in all sincerity with the Manchus, Mongols, Muslims, and
Tibetans in one melting pot to create a new order of Chinese nation
alism."102 The common identity that brought these groups together in
Sun's mind was not history or culture or ethnicity, but the fact of their
coinhabiting the national territory of China.
If the problems faced by state leaders in China and Siam and their
responses to them were quite similar, the situation in the Ottoman
Empire was dramatically different. Whereas late Qing leaders and their
Siamese counterparts faced a thirty- or forty-year struggle to define
boundaries and assert sovereignty, the Ottoman Empire saw 120 years of erosion in its territories. The Ottoman Empire came to be referred to as the "Sick Man of Europe," and the breakup of the old empire was
ominously described as the Eastern Question. The major European powers were concerned about the instability of the Ottoman regime and feared that a breakdown would shatter the precarious balance of
power in European politics, so they tended to prop the sick man up. At the same time they found rebellions by Christian minorities in
Greece and the Balkans irresistible, and repeatedly came to their sup
port.103 In contrast, while the Qing Empire had its own restless minori
ties, foreign powers were not interested in supporting them. The
Muslim Panthay rebellion in Yunnan in the 1850s and 1860s and the
Northwestern Muslim rebellions in the 1860s and 1870s were unable to attract foreign support.
In the Ottoman realm the claims of rebellious minorities were rec
ognized by the international community and given geographical form, often in multinational settings such as the Congress of Berlin, which
defined boundaries between the Ottoman Empire and the Balkans in
1878. Whereas in Asia suzerain relations under the tributary systems were unacceptable to British and French imperialists, in the Balkans autonomous principalities under at least nominal Ottoman suzerainty
were created in a series of international settlements. Autonomy proved to be a way station on the road to full sovereignty. For example, Ser
bia, through a series of international agreements from 1812 to 1829, became an autonomous principality within the Ottoman Empire. In
1878, under the Congress of Berlin, Serbia became fully independent
102 Julie Lee Wei, Ramon H. Myers, Donald G. Gillin, eds., Prescriptions for Saving
China: Selected Writing of Sun Yat-sen (Stanford, Calif.: Hoover Institution, 1994), p. 225
(cf. the 1904 definition on p. 42). 103 For a standard survey see M. S. Anderson, The Eastern Question, 1774-1923 (New
York: Macmillan, 1966).
Horowitz: International Law and State Transformation 483
along with Romania and Montenegro, and Bulgaria became an auton
omous principality under Ottoman rule. In other words, while Euro
pean powers happily negotiated agreements with the Sublime Porte to
give Christians limited sovereignty (much like the tributary relations
that Qing China and Siam had, which the European powers rejected), these were not stable arrangements, but short-term compromises extracted from a weakening Ottoman state. With new Balkan states,
Austria-Hungary, and Russia all competing for influence in Ottoman
Europe, boundaries continued to be subject to dispute.104 Over time
the physical forms of the autonomous principalities and newly inde
pendent states in the Balkans were shaped in part by the legacies of
Ottoman administration, which had divided the region into manage able administrative units, in part because of the pressures of nationalist
groups demanding historical rights and self-determination and in part on the deal making of the great European powers, which sought the
spoils while worrying about maintaining a balance of power.105 As the struggle over space continued through the nineteenth cen
tury, it promoted a transformation in human geography. The mixed
populations of Ottoman Europe began to separate. By choice or coer
cion, five to seven million Muslims left newly independent or auton
omous Balkan states and former Ottoman territories occupied by Rus sia and moved to predominantly Muslim areas in Anatolia, Syria, and
Arabia. By the same token, some Christians left Ottoman-controlled areas for the new Christian-controlled states. Kemal Karpat argues that these population shifts, together with the weakened Ottoman
positions, fueled changes in national identity in the Ottoman realm.
Increasingly, Ottoman subjects, particularly migrants, saw a Muslim
social identity as important and supported the movement known as
pan-Islamism, a movement "for Islamic unity and action to assure the
survival of the states as a Muslim entity and to better the lives of the
faithful." This development was not a turn to fundamentalism, Karpat argues, but rather a modern political movement responding to Otto
man weakness.106 Migration was, in a sense, the movement of what
104 For an overview of the politics see Stevan K. Pavlowitch, A History of the Balkans,
1804-1945 (London: Longman, 1999); J. R. V. Prescott, Political Frontiers and Boundaries
(London: Allen & Unwin, 1987), chaps. 7, 11 provide an overview of the boundary shifts. 105 Maria Todorova, "The Ottoman Legacy in the Balkans," in Imperial Legacy, pp.
54-57 106
Kemal Karpat, "The hijra from Russia and the Balkans: The Process of Self-Defini tion in the Late Ottoman State" in Muslim Travellers: Pilgrimage, Migration, and the Religious
Imagination, ed. Dale Eickelman and James Piscatori (Berkeley: University of California
484 JOURNAL OF WORLD HISTORY, DECEMBER 2OO4
Vattel called "nations" into national territories created in the diplo matic maneuvers of European international politics. Ottomanism (pro moted by the Tanzimat leadership), pan-Islamism (supported by Sultan
Abdulhamid II, who reigned from 1876 to 1909), and Turkish nation
alism were different efforts to construct a national identity to fit the
reduced territory and increasingly Muslim population of the Ottoman
Empire.
Conclusion
The experiences of the Ottoman Empire, Siam, and Qing China are
just one chapter in one of the great developments in modern world
history: the emergence of national states as the dominant form of
political organization. A considerable body of scholarship in recent
decades has examined the rise of national states in Europe over the course of many centuries. Charles Tilly and other scholars have focused on the intensely competitive political environment of Europe as a key causal factor in this process: states had to adopt certain characteristics,
including substantial contiguous territories, large armies, efficient
bureaucracies to tax and administer the military establishment, and so
on.107 But the process of creating national states elsewhere in Eurasia in
the nineteenth and twentieth centuries was in a large part shaped by external expectations. Processes of decolonization, great power inter
ventions to limit the scope of conflicts, and external models of "mod ern states" have all influenced the shape and structure of new states.
As Tilly remarked, "On the average state formation has moved from a
relatively 'internal' to a strongly 'external' process."108 In the semi
colonial environment, international lawT embodied in unequal treaties
and the associated discourse about civilization provided powerful exter
nal incentives for indigenous political elites to comply with this "stan
dard" European model.
Press, 1990), pp. 131-151. The quote is from p. 142. For a much more extensive discussion
see also Karpat, The Politicization of Islam: Reconstruction of Identity, State, Faith and Commu
nity in the Late Ottoman State (Oxford: Oxford University Press, 2001). On population, see
Karpat, Ottoman Population, 1830-1914: Demographic and Social Characteristics (Madison:
University of Wisconsin Press, 1985), chaps. 3-4. 107 Charles Tilly, Coercion, Capital, and European States, AD 990-1992, (Oxford: Black
well, 1992), surveys the literature and sets out the most sophisticated and integrated ver
sion of this general argument. See also the essays in Tilly, ed., Formation of National States
in Western Europe (Princeton, N.J.: Princeton University Press, 1975). 108
Tilly, Coercion, 181.
Horowitz: International Law and State Transformation 485
The coming of ministerial cabinet systems of state organization and
the introduction of European-modeled law codes and legal systems in
China, Siam, and the Ottoman Empire were products of the efforts by
political elites in those countries to introduce models of public admin istration that would be perceived as civilized. The law codes were
aimed primarily at ending the offensive use of extraterritoriality. Min
isterial government was part of the search to assert that government was stable and civilized and that foreign relations were given due attention. While the process was driven externally, this undoubtedly also served the domestic political goals of political elites who sought to centralize power in their own hands.
Europeans' increasingly territorial conception of sovereignty was
inscribed in international law by the mid-nineteenth century. In soci eties in which sovereignty was expressed primarily over a people? "nation" in eighteenth-century usage?this meant that a new atten
tion to territory was essential. The European obsession with boundaries and their demarcation, and their demand for formal treaties defining lines of demarcation, forced semicolonial societies to mark territory and claim new relationships with the people who inhabited it. In the
world of international law, these boundaries written into treaties
became a more-or-less permanent part of human political geography. The challenge left for state leaders was establishing actual administra tive control and seeking to cultivate common identities among the inhabitants of that domain. Siam and the Qing Empire had consider
able success retaining large territories and trying to subsume diverse
populations into a communal identity defined by the largest ethnic
groups: Tai and Han Chinese.109 The Ottoman Empire saw the reverse:
European interest in Ottoman Christians made retaining Greece and the Balkans impossible. Their tolerance of "autonomous" Christian territories within the empire was just a way station on the road to
independence. Territories defined national spaces, and to an impressive degree "nations," by choice or coercion, migrated to reinforce those
simplified spatial-national identities.
Sir John Bowring's "great truths of political science" were a reality that semicolonial elites had to accept. The globalization of European international law, and the European international society of which it
was part, created an institutional structure for global politics that has
long outlasted European expansion. The homogeneity of accepted
109 Of course, particularly in central Asian territories such as Xinjiang and Tibet, non
Chinese ethnic groups have been less than enthusiastic about Chinese dominion.
486 JOURNAL OF WORLD HISTORY, DECEMBER 2OO4
political forms in the contemporary world is a monument to the
endurance of the process and a sharp contrast to the situation of two
centuries ago. Today, "failed states" in which no effective government has emerged to fit a preexisting boundary proliferate; the tensions
between ethnic and religious minorities seeking political expressions of their own identities flare across the globe. The rationalization and
simplification of the international order, inscribed in and even hal
lowed by international law, has left an ambiguous legacy.