藩属体系对国际法体系——以清季中日琉球交涉为中心

Vassal System vs. International Law System: A Study on the Ryukyu Negotiations, 1878-1881

清季中日琉球交涉中,日方以国际法上的实效管辖原理混淆藩属体系上“藩属”和国际法体系上“属国”之间的本质差异,要求中方以琉球系“藩属”证明其符合“属国”标准。日方还将琉球同时作为“自主之国”与“藩属”归为悖反,以此否定琉球的藩属地位。借助国际法话语圈套,日本将琉球割离藩属体系,并将之纳入其主权范围。中方坚持“存球祀”,以履行藩属体系下“柔远字小”之责,从而维护宗主国地位;日方则假意要求中方履行“保护责任”,将琉球纳入中国主权范围,实则意在阻却琉球复立。日方强行在东亚适用欧洲国际法,并以此倾轧藩属体系的生存空间。如今,侵占了藩属法的空间效力范围的国际法仍在规训藩属法下的“历史性权利”,而前者的“历史时间价值”或能为当代领土争端的公平解决提供参考。

In the Sino-Japanese negotiation over the Ryukyu status(1878-1881),the Qing court had no conception of the essential difference between fanshu under fanshu system(similar with but not equal to suzerainty-vassal relationship) and the vassal state under the international law system, and attempted to demonstrate that Ryukyuwas both a fanshu and a vassal state. The Qing representatives also used the concept of autonomous kingdom torefute Japanese argumentation, but were soon overwhelmed by the international law jargon such as effective jurisdictionand prescription. As a result, the Meiji government brought Ryukyu under its jurisdiction and alienatedit from the fanshu system. To preserve its status as the suzerain state, the Qing court proposed to“preserve theclan of Ryukyu”under the policy of“cherishing foreigners from afar and protecting inferior nations”. The Japaneseside hypocritically welcomed Ryukyu being incorporated into Chinese sovereignty by asking the Qing governmentto uphold its responsibility to protect Ryukyu and prevent it from reviving its independent status. Japanforcefully applied European international law in East Asia to dismantle and replace the fanshu system by theso-called axiom of European international law. The Qing court was unable to articulate and effectively respondbecause it was unaware of the incommensurability between the two distinct normative systems. Today, the historicrights under the fanshu system are still governed by the international law that aims to undermine fanshu. However,as the author argues, the various normative systems existing long before European international law maybe conducive to the settlement of territorial disputes.