晚清中外条约关系的基本理论探析

A Probe into the Fundamental Theory of the Sino-foreign Treaty Relationship in Late Qing Dynasty

条约关系是国际法主体之间以法律形式表现出来的一种国际关系,具有规范性和质的规定性。其基本构成要素是条约,基本内容是缔约国的权利义务关系,具有特殊的强制性规范。国际法与条约关系联系密切,其相关规范反映出传统国际法的诸多局限,核心在于不承认中国等东方国家享有同等权利。条约关系与外交和战争有着密切关系,体现了它的性质,是晚清国际关系规律和特征的典型反映。晚清中外条约关系反映了西方列强的强权政治,其主体是不平等的。探析晚清中外条约关系的基本理论问题,有助于推进相关研究,深入认识这一关系及中国近代历史。

The Sino-foreign treaty relationship in late Qing Dynasty was a product of the era of the traditional international law. To probe into the fundamental theory issues is helpful to propel the research and profoundly recognize the relationship and Chinese modern history. Treaty relationship,which has its normalization and qualitative regularity, is a kind of international relations in the form of law among the international law bodies. The basic constitutive element is treaty, and the basic content is the rights and obligations relationship among contracting states, which has special mandatory norms. The international law had close contact with the treaty relationship, some relevant norms of which reflected the limitations of the traditional international law, the core of which was that China and other eastern countries' equal rights could not be admitted. The treaty relationship had close relations with diplomacy and war, which embodied its nature, and typically reflected the law of the international relations and its characteristics as well in that era. The treaty relationship in that era hadspecial properties which reflected the power politics of the western great powers, and the main bodies were not equal. The treaty relationship, which had become the basic problem in modern China and brought about a significant and complex influence, was a pivot of Sino-foreign relationship and modern history.