Bulletin Winter 1978

Extra-territoriality and Law Reform in China In the nineteenth century, the difference between Chinese and Western legal traditions was used by Western Powers as the reason or excuse for imposing on and maintaining in China the system of extra-territoriality, which had the effect of virtually reducing China to the status of a semi-sovereign State. Thus European text books on international law written before the First World War regularly doubted whether countries like China, Persia and Siam were full members of the international society. In this light, it is not difficult to see why many Chinese of a previous generation studied Western legal systems, worked on the revision of Chinese laws and legal institutions, strove for the abolition of the much- resented system of extra-territoriality, and generally tried to put China on the legal map of the world. The Attitude of Some New and Developing States towards International Law The Second World War brought not only the end of extra-territoriality in China, but also many other changes throughout the world. In 1945 fifty-one States signed the Charter of the United Nations, with China heading the list of signatories. These States represented, in the words of the International Court of Justice, "the vast majority of the members of the international community" at the time. But since then over twice that number of new States, coming almost without exception from what were formerly non-self- governing territories, have joined the international community. Save what they have acquired from the West, it is doubtful if many of them in their own culture and civilization share the Western attitude towards law. However, their stance towards international law is in general quite different from that of China between the two World Wars. China then, as we have seen, was only too glad to accept the system of international law which had grown up in the West, and was in fact trying hard to achieve equality before it with the Western nations. But many of the new States, tend to distrust or even reject what they regard as an alien legal system, in the making of which they have not taken part. In this, they are often joined by some Western developing countries, so that together they frequently form numerically a majority. Real and Apparent Causes of Alienation The real and apparent causes of this alienation are complex. There is first the major political one, namely the needs and aspirations of the developing countries which are now much more in evidence on account of the large number of such States having become full members of the international society. But international society is notoriously slow in responding to social changes. Those who are anxious to change the status quo and are impatient for reform are from time to time tempted to overthrow the entire legal system. However, it would be well to bear in mind that international law serves to regulate the co-existence of States in international society, and that life would be very chaotic without it and might prove particularly hard for the small Powers. From this point o f view there is ground for suspecting that much of the present disaffection is not really attributable to the actual rules, but is due rather to the fact that such States frequently feel themselves to be always losing out to the industrialised and better organised Western States whenever the law is invoked, even when they are convinced that justice is on their side. This grievance can be quite genuine, and there may be several explanations. One of the factors, for want of a better description, may be called material; the others are primarily cultural. More than one may be said to be related to the fact that, as developed in the West, law becomes always an extremely complex system, with a great deal of emphasis on formalities, procedures and other technicalities, which not infrequently are, possibly for very good reasons, treated as being more important than the rights and wrongs of an individual case. Materially, what this means is that many new or developing. States do not always have the requisite 17