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The Oxford Handbook of the History of International Law edited by Fassbender, Bardo; Peters, Anne (1st October 2012)

III Regions, II Asia, 19 China

Shin Kawashima

From: The Oxford Handbook of the History of International Law

Edited By: Bardo Fassbender, Anne Peters

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 20 November 2019

Subject(s):
History of international law — State practice — International law and international relations — International trade

(p. 451) 19  China

1.  Introduction

This chapter discusses how international law was received in China from the Chinese point of view. As is well known, China had treaty relations with Western countries, for example the Treaty of Nerchinsk of 7 September 1689.1 However, it was only when William Martin translated Henry Wheaton's Elements of International Law2 as Wanguo Gongfa (Immanuel CY Hsü translates it as public law of all nations), which was then published by the Zongli Yamen (government body in charge of foreign affairs during the late Qing Dynasty) in 18653 that China first received international (p. 452) law as text. In China, however, the translation Wanguo Gongfa is not used. Instead, the term Guoji (Gong)fa (international (public) law), which was brought back to China by intellectuals who studied in Japan in the early 20th century, has replaced it in the present day. This chapter discusses issues such as China's view of the international order before the reception of the Wanguo Gongfa as a text, circumstances before and after the reception of the text, circumstances surrounding the Wanguo Gongfa since then, the change of the term to Guoji (Gong)fa (international law), and its background.

2.  Recognition of Space and Foreign Relations in Chinese Dynasties

2.1.  Dezhi and Jiaohua

In a dynastic state, dezhi (rule by virtue) was assumed as a principle, and it was believed that the universal virtue of the emperor, who was given the Mandate of Heaven, spread all over the world. This is indicated by the words: ‘Under universal heaven, all lands are the Emperor's lands; within the farthest limits of the land, all are the Emperor's subjects.’4 It was believed that the virtue of the wise emperor spread out like grass flowing in the breeze, and that the people were influenced by his virtue.5 This hua (voluntary change and reform under the influence of emperor's virtue) indicates those who benefit from the emperor's virtue and kindness, whereas huawai (area/people out of influence of emperor's virtue) are those who do not bask in such benefits. Hua is something that the people should perform voluntarily, and it should not be forced on them by the emperor. This was the case so long as the people of huawai did not disrupt the peace and stability of the society. If they did, the emperor would take action.6

(p. 453) The emperor's virtue was regarded as ‘universal’ and guaranteed to have multiple interpretations. This framework was a useful logic to contain a diverse society, and the emperor held the interpretive authority. In other words, the relationship between the emperor and his subjects was not equal.

2.2.  The Relationship between Dezhi/Jiaohua and the Frontier/Neighbouring Countries

From the viewpoint of space, the following could be said about the ‘national borders’ of Chinese dynasties. Although governance by Chinese dynasties held principles whose meaning included crossing borders, namely dezhi and jiaohua, their limits were recognized and enforcement of jiaohua was basically not implied. On the other hand, in reality, territories over which dynasties had effective control existed. Borders were established as needed for military operations, tax collection, and management of roads.

The concepts of dezhi and jiaohua were also applied to relations with the frontier and neighbouring countries. In other words, although it was believed that the emperor's virtue spread universally, in reality, many people did not benefit from it; and the number of such people increased as the distance between their residence and the emperor increased. Nonetheless, if they did not threaten peace, then a non-interference policy was adopted. If the head of the region paid homage to the emperor as a vassal, then he was seen as being morally transformed and became a king who was in a vassal relationship with the dynasty (cefeng). As for the neighbouring regions that have yet to form countries, the emperor gave the heads of those regions government posts (tusi and tuguan), and delegated authority to maintain order in their respective regions as the officers. Dynastic States tried to maintain relations with the surrounding regions of their territories through these ritualistic relationships.7

In places like Tibet, Mongolia, and Xinjiang, non-interference policy was approved due to ‘rituals’ that were conducted to show the vassal relationship between the emperor of the Qing Dynasty and the ‘kings’ (or authorities) of these respective regions. Therefore, order was maintained based on each region's ‘customs’. Of course, (p. 454) this was the Han group's point of view; from the viewpoint of the Tibetans and the Mongolians, they did not necessarily intend to build a relationship with Beijing by benefitting from the emperor's virtue.8 For example, although the Dalai Lama recognized Qing's emperor as Buddha (Wenzhu), one of the patrons of Tibetan Buddhism, he did not think Tibet wholly belonged to the Qing Dynasty.

2.3.  Cefeng/Chaogong and Borders

These concepts of dezhi and jiaohua were applied beyond the dynasty's territories, to relations with the surrounding countries. If the qiu (chiefs) of other countries benefitted from the emperor's virtue and came to pay homage to the emperor, they were given high-ranking government posts and high positions in the society (guanjue), thereby incorporating them into the Chinese bureaucratic system, and they were also appointed as kings. This was called the vassal relationship (cefeng), but this act was not intended to interfere in the domestic affairs of the surrounding countries, as in the case of the Chinese dynasty's relations with Korea at the end of the 19th century. The Chinese dynasty gave the title of kings, made the countries use the dynasty's calendar, and entrusted the kings to govern their own countries, and did not interfere in their domestic affairs as long as the surrounding countries did not make requirements of the dynasty; for example, requesting troops to support their battles with other countries. The ceremony of cefeng was basically conducted when new countries were created, or there was a successor to an old king requiring a transfer of title. Similarly, the qiu who had been called king presented the emperor with souvenirs to pay tribute to him, and the emperor gave him gifts in return (huici). These acts, known as the tribute system (chaogong or jingong) meant that the ‘kings’ from the surrounding countries yearned for the emperor's virtue, which then indicated that jiaohua was indeed being realized. Also, as long as the rules were being observed, the dynasty did not interfere in these countries’ domestic affairs.9 In reality, not many countries used the same era names as the Chinese dynasties, which changed whenever a new emperor was crowned. It should (p. 455) also be noted that in domestic affairs, the only countries that used the Chinese dynasty's concept, Mingfen (a kind of moral justification which provides hieratical relations) in their domestic affairs were Korea and perhaps the Ryukyus and Annam.

However, even if the emperor's virtue expanded to the surroundings, it was not necessarily the case that ‘national borders’ between the dynastic territories and the surrounding countries were assumed. Outside space where bureaucrats who passed the Imperial exam (Keju) made ‘pilgrimage’ (areas of local government agency in the Qing period) were the zones named fanbu (Tibet, Mongol, and Xinjiang), and areas ruled by tusi, which were provinces where Han officials made ‘pilgrimage’, except for Manchuria.

Naturally, dynastic territories changed. Sometimes they included areas of yidi, other times they became smaller. The territories as areas of effective control were allocated a certain amount of space, but the actual borders were not clear. Rather, they were established with contrasting density as necessary. For example, if there was military confrontation between the two sides, a military demarcation line was drawn. If tax had to be collected, a target area was set, and if there were roads, then there were boundaries to jurisdiction. The situation was the same in the coastal areas.

Beyond these circumstances, border lines in many sparsely populated regions were ambiguous. There were gray areas that could indeed be called jiangyu. And people who lived in these jiangyu played the role of a mediator between the dynasty and the neighbouring countries outside its territories, or among multiple countries.

2.4.  Cefeng/Chaogong and Mutual Trade

Trade developed in these areas between ‘national borders’, and it was known as hushi (mutual trade). This was border trade basically without ceremonial rituals (cefeng and chaogong). Therefore hushi was based on foreign relationships that were different from those of cefeng and chaogong, which contained ceremonial rituals.

As Takeshi Hamashita argues, chaogong was certainly a political-diplomatic act accompanied by ceremonial rituals, but it was also an economic act.10 Opportunities for chaogong were limited to once in a few years (sometimes permitted several times a year or once a year), and the places of entrance into port as well as envoys’ routes to Beijing were designated. In Beijing, envoys were to pay homage to the emperor, present him with gifts, and receive gifts from him in return. In this sense, chaogong seemed like barter trade with little ‘freedom’. In reality, however, many merchants (p. 456) attended the envoys, and they traded in Beijing as well as in ports of entrance. Some of them could even go to places like Suzhou on buying trips while the envoys travelled from the port of entrance to Beijing and then back.

The Ming Dynasty basically unified foreign trade into trade accompanied by chaogong. Therefore, their stance was that countries could not trade if they did not conduct chaogong, and hushi was not permitted. The Qing Dynasty also adopted this principle of the Ming Dynasty. However, after the Qing Dynasty occupied Taiwan in 1683, this policy was changed and mutual trade without chaogong was permitted at four ports, including Ningbo and Guangzhou. There are still unclear aspects about the actual situation of hushi and its relations with chaogong, but at least we can think of a reason why trade with chaogong was still maintained thereafter.11 One reason is that the surrounding States could have limited private trade with the Qing Dynasty. In countries that conducted chaogong, such as the Ryukus and Korea, it could be assumed that the kings monopolized trade with the Qing Dynasty and did not let the merchants of their own countries engage in hushi. Alternatively, there could have been goods that were only handled in chaogong, or tax exemption measures, but this subject requires further investigation.

2.5.  The Canton System and Opium War

In 1757, the Qing Dynasty adopted a policy that limited trade with the Western countries to only take place in Guangzhou. Thereafter, the way of trade in Guangzhou was called the Canton System, and it became important as the limitation of trade in this system is regarded as a cause of the Opium War. In the first place, Western countries had mainly traded in Guangzhou before 1757, but it occurred within the framework of hushi, and was not officially related to chaogong.12 To be sure, from the end of the 18th century to the early 19th century, when British envoys such as Macartney and Amherst visited China to negotiate the expansion of trade, (p. 457) ceremonial rituals when meeting with the emperor (three kneelings and nine kowtows) became a problem.

Hushi was trade under certain regulations such as paying taxes. There were no strict regulations on the volume of trade or on the goods, but still, trade with Western countries in Guangzhou was strongly regulated. Britain tried to break these restrictions by using opium, which ultimately led to the Opium War.

As a result of the Opium War and the Treaty of Nanjing13 (Jiangning) of 29 August 1842, open ports were increased to five ports, and the Qing Dynasty lost its tariff autonomy. This, however, was nothing more than an expansion of hushi for the Qing Dynasty. Although the location for trade management with Western countries shifted from Guangzhou to Shanghai and changes were made to how taxes were collected, the ‘newly’ opened ports by the treaty were mostly previous hushi ports opened to Western countries before 1757, including Ningbo which was changed to Shanghai, and after the 1840s, the tribute relationships were still maintained.

3.  Translation and Teaching of International Law

3.1.  The Situation Before the Opium War

The first contact between Western international law and China is generally known to be the signing of the Treaty of Nerchinsk14 on 7 September 1689.15 Of course, there are arguments that contact between the two parties existed even before then.16 The Treaty of Nerchinsk was equal, and it was mediated by a Jesuit missionary, Thomas Pereira. According to Pereira's diary, he lectured the Kangxi Emperor on matters of Western international law, such as sovereign equality and the meaning of signing treaties.17 Needless to say, how these were interpreted by Kangxi is a different issue.

(p. 458) By the 19th century, as negotiations over opium started to take place, China began referring to international law, which was regarded as the norm for international relations in the West. However, Chinese translation of international law was not systemic; rather, partial translation was done as needed. It is known that Lin Zexu, who took the post of the Imperial Inspector Minister in Guangzhou and Guangxi in 1839 and worked on the banning of opium, requested a partial translation of Emmerich de Vattel's Le Droit des Gens18 of Peter Parker, an American optometrist staying in Guangzhou.19 Moreover, regarding this book, it has been found that Lin also requested partial translation of his translator Yuan Dehui.20 Furthermore, it is known that the text which Yuan relied on was not the original French, but instead he used the English translation by Joseph Chitty, The Law of Nations.21

Many preceding studies have actually criticized Lin Zexu's translation of the Wanguo Gongfa. This is because the translation was partial instead of systematic; it was explained orally instead of being written down, and sometimes the translation itself was incorrect.22 It is difficult to judge how the translation during this period affected Lin Zexu's policy toward Britain, but from the perspective of the encounter between China and international law, it was important for at least the following three points. First, the translation by Yuan and others was based on the values and morals of Confucianism. Second, their translation created new words that impacted future generations; for example, ‘right’ was translated as daoli, and ‘justice’ was translated as li.23 Third, both Parker's translation, ‘Huada’er Geguo Luling’ (Law of Each Nation) and Yuan's translation, ‘Fali Benxing Zhengli Suozai’ (Principles of the Law of Nature, applied to the Conduct and Affairs of Nations and Sovereigns) were selected and recorded as ‘Geguo Luling’ in Wei Yuan's Haiguo Tuzhi, volume 52 (of 60 volumes), and also in volume 83 (of 100 volumes of the enlarged edition). Therefore, they were read not only in China, but also in surrounding areas that used Chinese characters.24

(p. 459) 3.2.  Conclusion of Unequal Treaties

Starting from the Treaty of Nanjing,25 China signed a series of unequal treaties26 with Western countries. Nevertheless, the conclusion of unequal treaties itself did not change the way China viewed the outside world. From Britain's point of view, treaties were based on the principle of sovereign equality, therefore other bilateral issues outside the treaties also had to be decided based on this principle. In contrast, from the Qing's point of view, treaty texts that showed sovereign equality were the exception, so there was no way that other matters outside the treaties should also be based on the principle of sovereign equality. The Qing avoided writing in treaties that the dynasty and Britain were equals, and it resulted in rejecting the stationing of British ministers in Beijing as well as avoiding to talk about the problem of audience of foreign ministers with the emperor. Qing did make compromises regarding regulations on sending documents between foreign consuls at open ports and local officials of the Qing Dynasty, but these were interpreted as a means to pacify the British and Western countries as yidi and end the war.

In future generations, the Treaty of Nanjing and other treaties were labelled as unequal treaties, and they became the symbol of Imperialist invasion of China. Generally, unequal treaties are explained from the following three points: unilateral extraterritoriality and consular jurisdiction, agreement tariff, and most-favoured-nation status. However, when the Qing Dynasty concluded the Treaty of Nanjing, it did not recognize the treaty to be unequal. For example, since the people of Qing were not permitted to travel abroad, Qing did not think about the Chinese people within British territories. Also, even if disputes between the British and Qing subjects occurred within Qing's territories, Qing thought it was more convenient for Qing that Britain themselves took care of their own people, as ‘they stood on a lower level of civilization than Chinese in China’. Furthermore, according to Tanglu, law in the Tang period, dispute between foreigners in China was to be judged by foreign law. Therefore, consular jurisdiction did not contradict Chinese historical precedents.27 Most-favoured-nation status was also regarded as universal benevolence equally provided to yidi by the emperor, which concept was called Yishi Tongren, and it was considered that it would cause more trouble if there were differences in the benefits provided to yidi. Also, as long as it was the emperor's virtue, it was something that only Qing could unilaterally provide, and not something that the other side could provide to Qing.

(p. 460) 3.3.  Martin's Wanguo Gongfa

As stated above, it was when William Martin translated Henry Wheaton's Elements of International Law (1836) and published it as Wanguo Gongfa in early 1865 that China seriously and systemically translated Western international law.28 This translation had a large impact, since there was no systemic translation of other works on international law for at least ten years thereafter. From the perspective of international law, the middle of the 19th century was a period of transition from international law based on natural law to one based on positive law, but Wheaton's work strongly holds elements of natural law. This view was that in the international community, there were universal systemic legal norms between States that could not be used for each State's own ends. These legal norms existed as something that was given, as in the order of nature. Therefore, there was a difference between individual treaties bilaterally signed between China and foreign countries, and this Wanguo Gongfa.

The process that led to Wanguo Gongfa's translation could be explained by the following.29 Martin was a Presbyterian missionary, and after he arrived in China in 1850, he was conducting missionary work in Ningbo. It is known that he became the interpreter of the American side during the negotiations for the Sino-American Treaty of Tianjin on 18 June 1858,30 and contributed a text in the treaty about freedom to conduct missionary work. During the negotiation process, Martin witnessed Britain's violation of international law, and began to think that the Chinese government should acquire proficiency in diplomatic customs.31 Martin went home once, then returned to China in 1862, and started to translate the Wanguo Gongfa in Shanghai.

Some preceding studies argue that Robert Hart had already translated parts of Wheaton's work as well as the American Consul's Manual when Martin began translating, but this is not correct. According to Hart's diary, Hart translated parts of Wheaton's work from July to August of 1863, after he became Maritime Customs Service Officer. The Zongli Yamen dispatched four envoys including Dong Xun and Xue Huan to make the translation request to Hart.32 The translation work was finished on 7 August, and it was submitted to the Zongli Yamen. This date of submission (p. 461) indicates that Martin's translation of the Wanguo Gongfa was done earlier than the translation that was handed to the Zongli Yamen.

At this point, Martin was not requested to translate the Wanguo Gongfa by the Zongli Yamen. His translation work was finished in 1863. In the same year, when Wen Xiang, minister of the Zongli Yamen, was negotiating with France, he asked the American minister in Beijing Anson Burlingame to recommend literature on Western international law, and Burlingame mentioned Wheaton's work.33 Since Burlingame knew about Martin's translation work, he recommended it to Wen Xiang. Martin immediately went to Beijing, and showed his translation manuscripts to Chong Hou, whom he had already met, and Chong delivered them to Wen Xiang. On 10 September 1863, Martin accompanied Minister Burlingame to visit the Zongli Yamen, and met with the heads of the Zongli Yamen, including Prince Gong I. After Wen Xiang checked the overlapping parts with Hart's translation, the Zongli Yamen certified this translation work to be beneficial, and ordered four secretaries (zhangjing) including Chen Qing and Li Changhua, to assist Martin in revising and editing the translation, which was completed in April 1864.34 In early 1865, Wanguo Gongfa was published by the Beijing Chongshiguan, and Martin sent 300 copies of it to the Zongli Yamen with his compliments, which were then distributed to central and local offices.35 This book evoked a strong response from East Asia, especially Japan.36

These episodes show that the Zongli Yamen was comparatively positive about translating the Wanguo Gongfa. The reason why the Zongli Yamen paid attention to the Wanguo Gongfa is certainly for the convenience of negotiations with France, but also it could have been related to the fact that it was trying to sign a series of treaties with Western countries besides Britain, France, the United States, and Russia in the 1860s. Banno Masataka argues that diplomacy during this period could be described as ‘the beginning of diplomacy that followed the rules of modern diplomacy’.37

(p. 462) However, the purpose of the Chinese was to understand the Wanguo Gongfa, which was the norm of the West, and to confute their arguments.38 It seems that the head of the Qing Dynasty recognized the usefulness of the Wanguo Gongfa due to an incident in February 1864. In February 1864, when Prussia and Austria declared war against Denmark over the Schleswig-Holstein Question, Prussian minister to China Guido von Rehfues used a German warship to capture a Danish commercial ship that was moored at Dagu. When the Zongli Yamen used the Wanguo Gongfa as a base to point out the illegality of such action and filed a protest to the Prussian minister, the latter admitted the mistake and released the Dane ship with compensation.39 This was victory from ‘negotiation’ for the newly formed Zongli Yamen, and also an instance where it admitted the usefulness of the Wanguo Gongfa. Historical sources do not show direct causal relationship between this incident and the translation of the Wanguo Gongfa, but it is an important incident that became an opportunity for the Zongli Yamen to realize the utility of Wanguo Gongfa to conduct diplomacy with Western countries.

One thing to keep in mind, however, is that even at this point the Qing Dynasty did not think that it was obliged to obey the Wanguo Gongfa. The translation of the Wanguo Gongfa was based on the principle of gaining the upper hand over the West by using the tools of the West, and indeed, ‘controlling foreign countries by using other foreign countries (yiyi zhiyi)’. This did not mean using Western tools as China's guiding principles, or ‘changing China by using other foreign countries’. In that sense, the situation did not develop in the way that the American diplomats had expected; Qing's attitude did not change through the translation of the Wanguo Gongfa.

3.4.  Jingshi Tongwenguan and Teaching of the Wanguo Gongfa

The Qing Dynasty established the Zongli Yamen in 1861 as a contact point for the four Western legations set up in Beijing as a result of the Treaties of Tianjin and Beijing during 1858–60. The Zongli Yamen was not an official body of the central government. Rather, it was a temporary institution, and most of its ministers overlapped with those of the Junjichu (Office of Military Secrets, known as the Grand Council). For this reason, it was strongly characterized as a temporary foreign office under the auspices of the Junjichu.40 In 1862, the Jingshi Tongwenguan was established in Beijing as (p. 463) a subsidiary organization of the Zongli Yamen.41 This was a school that taught foreign languages and a basic notion of international relations. Examples of its departments include the departments of English, French, and Russian. The students had to be younger than fifteen, and from Baqi (Peoples of Eight Flags). Teachers were recommended from the legations, but most of them were foreign missionaries. Martin became an English teacher in 1865, where others, such as John Bordon and John Fryer, taught English before him.

At the end of 1866, the Zongli Yamen decided to reform the Tongwenguan. The new policy was to teach the natural sciences like astronomy and mathematics, and to accept those who passed the Imperial examination as students so that they were educated by foreign teachers. This was strongly criticized by the bureaucrats. Nevertheless, Zongli Yamen's reform proposal was ultimately accepted, and the Tongwenguan transformed from a language school to a comprehensive school. Afterwards, new subjects such as Wanguo Gongfa, Fuguo Ce (policy to increase national wealth), and world history were added. However, the tide of criticism toward the Zongli Yamen also strongly impacted the Tongwenguan.

Martin was also invited to teach Wanguo Gongfa and Fuguo Ce in October 1867, but he turned down the offer and returned home temporarily, and revisited Beijing on 26 November 1869. However, it was not until 1873 that he started teaching international law using Theodore D Woolsey's Introduction to the Study of International Law42 as a textbook.43 The work of translating the original book from English to Chinese was indeed appropriate for the Tongwenguan, which Martin often called the International Law and Language School.

However, the Tongwenguan's curriculum shows that Wanguo Gongfa was not necessarily the core curriculum. Students belonged to one of the language departments (English, French, Russia, and German), and their curriculum was mainly to study their respective languages, Chinese, and mathematics. They could study other subjects after they decided to take either an eight-year or five-year course. Wanguo Gongfa was nothing more than an elective that was introduced only in the seventh year of the eight-year course, and in the final year of the five-year course.44 There(p. 464) fore, out of a 100 students at the Tongwenguan, only about ten students took the course on Wanguo Gongfa.45 In this respect, it is difficult to say that the Wanguo Gongfa had a great importance in the Tongwenguan's education curriculum. Nonetheless, it is also true that the school produced assistants for Martin's translation work of international law, such as Wang Fengzao, Lian Fang, and Qing Chang. They later became ministers in foreign embassies and leaders of the Foreign Ministry in the late Qing period.

3.5.  The Knowledge of Wanguo Gongfa and Diplomacy in the Modern Period

As mentioned above, the translation of the Wanguo Gongfa acted as a tool for negotiations with the West. As the Qing Dynasty started to dispatch ministers and contact with the West deepened, Qing was required to increase its understanding of the Wanguo Gongfa. Indeed, after the mid-1870s, demand for the Wanguo Gongfa did increase to a certain extent, and its knowledge was valued. However, as China felt more superior than the West because it valued wulun (the five Confucian filial-piety relationship) and faith, Qing's view of the world did not change that much.

In 1876, a year before Qing dispatched the first minister to Britain Guo Songtao, Martin and his students at the Tongwenguan (Lian Fang and Qing Chang) published Xingyao Zhizhang,46 which was a handbook for sending diplomatic missions. Also in 1877, Martin and his students at the Tongwenguan (Wang Fengzao and Feng Yi) translated Theodore D Woolsey's Introduction to the Study of International Law and published it as Gongfa Bianlan.

Although Xingyao Zhizhang and Gongfa Bianlan contained various rules about sending diplomatic missions, in reality, Minister Guo did not take the letter of attorney with him, and a problem erupted regarding the status of Vice Minister Liu Xihong. Martin did show Guo Xingyao Zhizhang before he took the post, but perhaps the Gongfa Bianlan and Xingyao Zhizhang were not referred to the Zongli Yamen.

Nevertheless, Martin and his students at the Tongwenguan continued their translation work. These books were helpful for ministers dispatched abroad and for those involved in diplomatic negotiations. In 1880, JK Bluntschli's Das moderne Völkerrecht (p. 465) der Civilisirten Staaten als Rechtsbuch dargestellt was translated as Gongfa Huitong (10 volumes). Also, during the Sino-French War in the early 1880s, the Convention respecting the Laws and Customs of War on Land was translated and used in Qing's negotiations with France. Furthermore, Martin's speech made in Berlin in 1881, Trace of International Law in Ancient China, was translated as Zhongguo Gushi Gongfa Lunlue by Wang Fengzao and it was published in 1884.47

Besides Martin and his students at the Tongwenguan, there was another person translating works on international law: John Fryer. Fryer mainly focused on British works, such as Edmund Robertson's section of international law in The Encyclopaedia Britannica, which was translated as Gongfa Zonglun.48 Another example is the translation of Robert J Phillimore's Commentaries upon International Law49 as Guojifa Pinglun. Parts of Guojifa Pinglun were also published as Geguo Jiaoshe Gongfalun and Geguo Jiaoshe Bianfalun.

3.6.  Institut de Droit International and Martin's Presentation

While Martin and Fryer were working in China, the Institut de Droit International discussed the application of international law to ‘Eastern countries’, and the discussion was published in its Annuaire de l’Institut de Droit International and in Revue de droit international et de législation comparée.50 In 1878, the fourth meeting of this organization (p. 466) was held in Paris, and a British scholar of international law and Vice President of the Association of Reform and Codification of the Law of Nations, Travers Twiss made a presentation.51 On the application of international law to the East, he stated: ‘People from the Ottoman Empire, Persia, China, and Japan are different from people of other uncivilized countries. Relations with Eastern countries differ depending on the level of civilization.’52 Specifically on Japan and China, he stated:

Both countries are aware of their obligations toward foreign nationals and individuals, and this awareness is essentially the same as the European people's awareness of the basic principle of European international law—the principle that no authority can elude the obligations of a treaty without the other party's agreement.53

Therefore, according to Twiss, it was not impossible to incorporate Japan and China into the group of countries that receives international law.

On the other hand, at the seventh meeting of the Institut de Droit International, Hornung made a presentation titled ‘Reform of the Judicial System in the East’. He pointed out the problems of the consular jurisdiction system at the time, and called for the establishment of mixed courts in all Eastern countries ‘as the duty of civilized countries act as guardian for people whose progress has been slow’.54 At this meeting, the establishment of mixed courts gradually became one of the focal points of the discussion. On China, Jan Helenus Ferguson, who also served as Dutch minister to China, made presentations titled ‘Les réformes judiciaires en Chine et dans le Royaume de Siam’ and ‘Projet d’établissement de tribunaux internationaux pour la Chine’, at the 12th meeting held in 1891 in Hamburg.55 According to Ferguson, civil cases in China that were the most difficult and required most attention were: first, cases between Chinese and foreigners; second, cases between foreign residents in China from different home countries; and third, cases between foreign residents in (p. 467) China from the same home country. He then argued that these problems could be resolved by setting up an international mixed court, and that the system used in Egypt should be revised and applied to China.

While working at the Tongwenguan, Martin often sent letters about his activities in China to European scholars of international law, and they were often published in Revue de droit international et de législation comparée. For example, in one article, he showed his motivation for the education of international law:

I plan to start international law education with Woolsey's book. This book was written to be used by students, so it is better than Wheaton's collection of treaties. Students have the translation of Wheaton's book. I translated it into appropriate language, but ultimately I plan to have students read this book in original text. By starting from Woolsey, I am confident that students are able to gain a more complete knowledge of the subject as a whole.—In Beijing, June 20, 1872.56

In another article, Martin depicted China's reception of international law in the following way:

The Chinese people to whom I handed the translation of Wheaton's book immediately realized the benefits that could be drawn of it. They understood that if they make a mistake, they could use such knowledge of laws and regulations to blame it on other countries’ oppressive means. It was also easy for me to see what the Chinese did not understand. What they did not understand was that when they file a suit on Europe's compliance with international law, both parties must mutually assume suitable obligations. This is a high-level concept that is used in the practical stage, and not when they have just started learning international law.57

Here, Martin indicates that even though the Chinese were quick to understand international law as a tool for negotiations, they had difficulty understanding the concepts of the principle of reciprocity.

4.  Building of a Modern State and the Wanguo Gongfa

4.1.  Qing's Double Standard in its Foreign Relations

From the 1870s to the 1880s, China's actual foreign relations started to undergo a big transformation. While maintaining existing tribute relationships, the Qing Dynasty (p. 468) also maintained treaty-based commercial relationships with Western countries. In other words, Qing held a double standard in its foreign relations. However, as the surrounding countries were colonized by the West or annexed by Japan, there was no choice but to gradually reduce its tribute relationships with the surrounding countries. In contrast, treaty relationships, which were originally limited to four countries (Britain, France, the United States, and Russia), expanded to include other Western countries that had commercial relations with China. Such treaties were all so-called unequal treaties.

By the mid-1880s, the only remaining country that was in a tribute relationship with Qing was Korea. Qing started to apply the double standard in its foreign relations to its relationship with Korea, and demanded Korea to open up to the West while maintaining the tribute relationship with Qing.58 Qing entered into unequal relations with Korea in the field of commerce, opened a settlement (zujie) in Korea, and enjoyed the privilege of unilateral consular jurisdiction. In addition, in the 1880s, Qing stationed Yuan Shikai in Seoul not as minister or diplomat, but as a resident, and ordered him to be involved in Korea's domestic and foreign policies. Qing used the Western logic of a ‘protectorate’ and reorganized its tribute system into a modern one. Nevertheless, Qing took these unprecedented measures in order to maintain the tribute system and to guarantee its influence in Korea, which was geopolitically an important country.

Korea ended its tribute relationship with Qing in 1895 by signing the Treaty of Shimonoseki with Japan. Later, it entered into a treaty relationship with Qing with the conclusion of a treaty in 1899. As will be discussed below, by the second half of the 1890s, Qing's world view had started to change.

4.2.  The ‘Demarcation’ of National Borders and ‘China’ as a Sovereign State

From the 1870s to the 1880s, the borders and territories were a challenging issue in China. The Taiwan Incident erupted between Qing and Japan in 1871. When the people of Mudan (Paiwan aborigines) from Southern Taiwan harmed the people of Japan's Yaeyama Islands who drifted ashore, Qing bureaucrats called the Paiwan aborigines ‘people of Huawai (people outside civilization in Han's context)’. Japan judged this as a sign that Qing regarded Taiwan as terra nullius (no man's land) which it did not govern. Therefore, Japan dispatched troops to Taiwan. It was not that Qing had not understood the Wanguo Gongfa at this point, or that the (p. 469) Minister of the Zongli Yamen who was in charge of negotiations mentioned the name ‘people of Huawai’. Japan certainly tried to show its understanding of the Wanguo Gongfa by using its logic and advertising it both internally and externally.

In the 1870–80s, active discussions were held about how to defend Qing's territories, known as Haifanglun (assertion of naval defence) and Saifanglun (assertion of inland defence). This meant that disputes over national borders with Japan and Russia had erupted. After the Treaty of Nerchinsk of 1689, Qing's northern national borders were gradually demarcated. Also, as Russia advanced into Central Asia, disputes over national borders with Qing erupted, and the borders were demarcated by treaties such as the Treaty of Ili of 1881. Besides Japan and Russia, Qing also negotiated the border between Indochina with France, and the border between Burma with Britain, thereby demarcating its national borders. As a result of these negotiations, Qing did lose considerable parts of its territory, but it should also be noted that Xue Fucheng, who negotiated the border between Burma in the late 19th century and Tang Shaoyi, who negotiated the border between Tibet in the early 20th century, used the Wanguo Gongfa to conduct negotiations and worked to maintain China's sovereignty.59

In the process of demarcating new national borders, Qing adopted a policy to unify domestic governance that was pluralistic. In the 1880s, Qing set up Xingjiang and Taiwan as provinces, and in the 1890s, Manchuria as the Three Eastern Provinces (Tongsansheng), where immigration was initially prohibited because it was Qing's birthplace. Qing also sought to make Tibet into a province. These moves toward the unification of governance could be seen as Qing's intentionality for a modern sovereign State.

As ‘China’ as a sovereign State became established, people started to become aware of ‘Chinese’ as nation. Qing had not publicly approved overseas immigration until overseas travel was accepted by the Treaty of Beijing in 1860. However, Qing set up a consulate in South-East Asia and decided to protect the overseas Chinese living in the region.60 This could also been seen as the approval of ‘Chinese’ who should be protected.

In this way Qing started to proclaim itself as a sovereign State, but it is not enough to discuss this phenomenon as simply Western impact. First, Qing's moves to set up provinces (sheng) and to protect overseas Chinese were not necessarily legitimized (p. 470) under the logic that Qing should strive to become like a Western modern State.61 The expansion of sheng and the protection of overseas Chinese were both understood according to the logic of expanding the Emperor's virtue and dynastic dezhi and jiaohua. Also, regarding the interpretation and uses of treaty privileges, the roles of people, called Maiban, who worked under Western merchants and Chinese local staff have started to draw attention.62 In negotiations over the Wanguo Gongfa and treaties, we are required to not only examine the unilateral impact from the West, but also to grasp the issues from the interaction between the West and the Chinese side.

4.3.  Bianfa and Wanguo Gongfa

Xue Fucheng thought it was problematic that Qing was seen as ‘a country outside public law (Gongfa)’ therefore it could not enjoy the rights that countries inside public law could enjoy.63 However, as national salvation and protection became big issues after the First Sino-Japanese War, Qing's view of the world started to transform, and changes in its attitude toward the Wanguo Gongfa could also be seen. Specifically, it should be noted that Kang Youwei recaptured the world from Yitong Chuishang (governing the world hierarchically) to Lieguo Bingli (coexistence of nations of the world). This indicated change in Qing's thinking from one that believed Qing to be a key player of exceptional rank in the world to one that recognizes Qing as one of the many countries that stand side by side in the world. Therefore, according to the theory of social evolution, which was popular at that time, Qing was the inferior and the weak; in order for China to survive the competition of the international community, it had to work hard by itself.

The Wanguo Gongfa was used by revolutionaries, constitutionalist activists, and also by Qing as logic to emphasize its stance. However, the knowledge of international law that was used by a revolutionary polemic Hu Hanmin in discussions for the magazine Minbao no longer came from Martin, but from new scholars such as John Westlake, Franz Liszt, and Maptehe, or from Japanese scholars such as Takahashi Sakue and Terao Toru. Also, during this period the term Wanguo Gongfa quickly stopped being used, and it was replaced by the term Guojifa (international law).64(p. 471) This could be seen as the spread of Japanese translation of the term international law, as well as the spread of international law as positive law to China.

After the First Sino-Japanese War, a political reform movement known as the Hundred Days’ Reform (Wuxu Bianfa) occurred for a short while in 1898. At Jingshi Daxuetang (later Peking University), which was set up at that time, various subjects of Western scholarship were incorporated into the curriculum, and Martin from the Tongwenguan was welcomed to teach there. However, the most important innovation was that international law was seen as Qing's legitimate knowledge. Qing declared the abolition of the Imperial exam in December 1901 (abolished in 1904), and in the following year one of the subjects tested in Xiangshi was world politics, which included public law. Also, in the 1904 charter of Jingshi Daxuetang, several schools were to be established in the Jingshi Daxuetang, and a course on ‘negotiation law (international law)’ was set up in the School of Politics and Law.65 Since Qing decided to adopt the constitutional monarchy system, new schools of politics and law were established in various places, and at these schools international law was incorporated as an important part of the curriculum. The textbooks that were used in these schools were mainly from Japan, and they held characteristics of positive law.

On the other hand, Qing's students who studied abroad had contact with international law, and they brought back substantial knowledge to Qing. This trend had been seen from the 1870s. For example, students of Fuzhou Naval College who were sent to France made excellent grades studying international law. Ma Jianzhong, who studied international law at École Libre des Sciences Politiques as student supervisor submitted a proposal on training diplomats to Li Hungchang, and after returning to Qing, Ma became successful in conducting foreign negotiations under Li.66 The Tongwenguan also sent students to Britain, France, and Germany twice in the second half of the 1890s. Furthermore, in the early 20th century when the United States used reparations from the Boxer Rebellion to open up opportunities to studying in the United States, highly capable intellectuals studied international law in major American universities. Gu Weijun and Wang Zhengting obtained degrees in international law from Columbia University and Yale University, respectively. They must have been influenced by American scholarship of international law, which values sovereignty.67 It could be inferred that these became the foundation of diplomats who were successful during the period of the Republic of China.

(p. 472) However, students who studied in Japan cannot be overlooked, considering their numbers and influence. Qing's abolition of the Imperial examination and provision of qualification equivalent to passing the Imperial exam to students who studied abroad encouraged students to study in Japan.

After the number of Chinese students studying in Japan reached almost 10,000 in the early 20th century, the knowledge of international law that the students gained did have a certain impact. Especially for Chinese intellectuals who started to foster awareness of ‘China’ as a State, and were increasingly conscious of the need to maintain the country's independence and to recover sovereign rights, international law was not only logic that justified the West's acts of aggression, but also logic that allowed Qing to defend itself and recover its lost sovereign rights. Huang Zunsan, who studied in Japan at the end of the Qing period left a detailed diary, in which he wrote that he got the concept of State and national territory and inviolability of territory, through learning international law.68

5.  Conclusion

After the First Sino-Japanese War (1894–95), Qing was no longer a ‘country outside the Wanguo Gongfa’ and became aware of itself as one of many States that coexist in the international community. Qing clearly recognized this at international conferences, such as the Hague Conferences in 1899 and 1907. Being treated as a second- or third-rate power instead of a first-rate power due to the low level of Qing's development also gave a push to Qing to work toward building a modern State.

In the first half of the 20th century, ‘national salvation’ was the national goal, thus Qing's independence as a State and recovery of sovereign rights were demanded. International law was, on the one hand, a tool which the Western powers used to wrest sovereign rights from China, but during this period China actually relied on international law to maintain sovereign rights and took moves to recover sovereign rights that were lost. These tendencies could be seen in Chinese diplomacy at the Paris Peace Conference of 1919 and the Washington Naval Conference of 1921. From the 1910s to 1920s, China pursued a treaty revision diplomacy (xiuyue waijiao) that tried to recover lost rights and interests, but since entering World War I and becoming a victorious power, China took the rights and interests of defeated countries, such as Germany and Austria.

(p. 473) On the other hand, at the League of Nations founded in 1919, China aimed to become a non-permanent member of the Council, and sometimes it acted as president of the Council. China also sent a judge to the International Court of Justice in The Hague, and showed a certain level of presence in the world of international law.

In considering the rapid spread of international law from the end of the 19th century, the transition from Wanguo Gongfa with characteristics of natural law to international law with characteristics of positive law, as well as the ‘chain of knowledge’ between East Asia and Japan is both important. How Japan's understanding of international law and international community that valued sovereign rights affected China is an issue for future research. Another important research topic is how the early 20th century Chinese diplomats’ knowledge of international law was affected by the theories and schools of countries they studied in (mostly Europe and the United States).

Still, there is the question of whether we can simply consider that China, which understood the Wanguo Gongfa in a Chinese context in the second half of the 19th century, dovetailed with the international community's understanding of international law by the first half of the 20th century. As Western Wanguo Gongfa/the way of international law gradually became tolerant and flexible to include others including China, we can see the importance of mutual interaction between the Western society and the other worlds.69 At the same time, it is also possible to set a hypothesis that China's own view of the international order and understanding of international law continued to exist in the first half of the 20th century, like overlapping layers of low-pitched sounds.70 Or, these became more complex in the process of China's reception of Marxism. In that sense, as historians, we need to be careful about capturing the historical process from the second half of the 19th century to the first half of the 20th century as simple stages of ‘evolution’ or ‘development’.

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Footnotes:

1  This treaty was drafted in Latin officially, between Songgotu on behalf of the Kangxi Emperor and Fedor Golovin on behalf of the Russian tsars Peter I and Ivan V. It decided national borders and trade roads. On the Treaty of Nerchinsk between China and Russia ((signed 7 September 1689) (1689) 18 CTS 503), see K Yoshida Roshia no Toho Shinshutsu to Neruchinsuku Joyaku (Russian Expansion for East and the Treaty of Nerchinsk) (Toyo Bunko Tokyo 1984).

2  See H Wheaton Elements of International Law: With a Sketch of the History of Science (6th edn Carey, Lea & Blanchard Philadelphia 1855); also the contribution by LH Liu ‘Henry Wheaton (1785–1848)’ in this volume.

3  There are two theories regarding the publication year of the Wanguo Gongfa 1864 and 1865. In Japan, an example of the 1864 theory is S Satō Kindai Chūgoku No Chishikijin To Bunmei (Intellectuals and Civilization in Modern China) (The University of Tokyo Press Tokyo 1996) at 45; and LH Liu also adopted the 1864 theory in her book The Clash of Empires: The Invention of China in Modern World Making (Harvard University Press Cambridge MA 2004) at 108. An example of the 1865 theory is M Banno Kindai Chūgoku Seiji Gaikō Shi (History of Modern Chinese Politics and Diplomacy) (The University of Tokyo Press Tokyo 1973). However, as a conclusion, the 1865 theory is correct. This is especially because in the Wanguo Gongfa, the introduction of Dongxun is set in December of the third year of Tongzhi. See X Lin Cong Wanguo Gongfa Dao Gongfa Waijiao: Wan Qing Guojifa De Chuanru, Quanshi Yu Yingyong (From Wanguo Gongfa to Diplomacy based on Public Law of All Nations: Propagation, Interpretaion and Application of International Law in the Late Qing Dynasty) (Shanghai Guji Chubanshe Shanghai 2009); also, regarding the English translation of the Chinese term Wanguo Gongfa, ICY Hsü translates it as ‘public law of all nations’. See ICY Hsü China's Entrance into the Family of Nations: The Diplomatic Phase, 1858–1880 (Harvard University Press Cambridge MA 1960).

4  ‘Xiaoya: Beishan’ in Shijing (The Book of Songs) ch 2, nos 205–15.

5  ‘Qunzi zhi Defeng, Xiaoren zhi Decao. Caoshang zhi Feng, Bi Yan’ in Lunyu (The Analects of Confucius) book 12 (Yan Yuan) verse 19.

6  The word ‘huawai’ became an issue when Japan dispatched troops to Taiwan in 1871. However, this concept was originally based on the nationality principle. According to the logic of the dynasty, it was possible to have people of ‘huawai’ living in its territory.

7  Being in a vassal relationship with the Chinese dynasty meant that political powers sent envoys to the dynasty each time they were formed or when their leaders changed. By paying homage to the emperor as vassals, those living inside the dynasty's territories were given commensurate government posts, and those from outside the territories were given the title of king as well as the imperial seal and almanac. At times, these were awarded to the kings by envoys sent by the dynasty. However, whether both parties shared the understanding that these rituals were indeed ‘vassal homage’ is debatable. Even if the Chinese dynasty regarded such rituals as ‘vassal homage’, there is a possibility that the other envoys might have seen them as rituals similar to those conducted for their Kings. It should be kept in mind that many of the explanations derived from Chinese historical sources greatly reflect the views of the Chinese dynasty.

8  T Motegi ‘Chūgoku Teki Sekaizō No Henyō To Saihen (Transformation of and Restructuring of the Chinese View of the World)’ in W Iijima et al (eds) Chūka Sekai To Kindai, Shirīzu 20 Seiki Chūgoku Shi (The Chinese World and the Modern Period, Series 20th Century Chinese History) (The University of Tokyo Press Tokyo 2009); T Motegi ‘Chūgoku Ōchō Kokka No Chitsujyo To Sono Kindai (Chinese Dynastic States’ Order and Their Modern Period)’ (2009) 682 Risō 83–93.

9  Of course, the actual state of the dynasty's vassal relationship with the surrounding countries differed depending on the country and the period of time. Moreover, as the Qing Dynasty treated Russia as an ‘ally’, not all relations with foreign countries were positioned in the tribute system. Generally speaking, however, the Qing Dynasty adhered to its logic of dezhi and jiaohua in principle. See M Liao Goshi Kara Mita Sinchō No Tsūshō Chitsujyo (Commercial Order of the Qing Dynasty from the Viewpoint of Mutual Trade) (PhD thesis Hokkaido University Sapporo 2006); M Mancall China at the Center: 300 Years of Foreign Policy (Free Press New York 1984).

10  T Hamashita Kindai Chūgoku No Kokusaiteki Keiki: Chōkō Bōeki Shisutemu to Kindai Ajia (Modern China's International Opportunity: The Tribute and Trade System and Modern Asia) (The University of Tokyo Press Tokyo 1990).

11  Regarding hushi, see, for example, S Iwai ‘Chōkō To Goshi (Chaogong and Hushi)’ in H Wadaet al (eds) Higashi Ajia Kingendai Tsūshi 1 Higashi Ajia Sekai No Kindai 19 Seiki (Modern and Contemporary History of East Asia 1 The Modern Period of the East Asian World 19th Century) (Iwanami Shoten 2010).

12  Regarding the Canton Trade, the following studies have been referenced: W Cao ‘Qingdai Guangdong Tizhi Zai Yanjiu (A Re-Study of the Guangdong System during the Qing Period)’ (2006) 2 Qingshi Yanjiu 82–96; HB Morse The Chronicles of the East India Company Trading to China, 1635–1834(5 vols Clarendon Press Oxford 1926–29); EH Pritchard ‘The Crucial Years of Early Anglo-Chinese Relations, 1750–1800’ (1936) 4 Research Studies of the State College of Washington 96–442; WE Cheong The Hong Merchants of Canton: Chinese Merchants in Sino-Western Trade (Curzon Richmond 1997). In recent years, new horizons have gradually been developed by young Japanese scholars. For example, K Fujiwara ‘18 Seiki Chūyō No Kōshu Ni Okeru Kōgai Shōnin No Bōeki Sannyū Ni Kansuru Hukoku No Bunseki (Declarations Concerning outside Merchant Participation in Foreign Trade at Guangzhou during the mid-18th Century)’ (2009) 91 Toyo Gakuho 411–38.

13  Treaty of Najing (concluded 29 August 1842) (1842) 93 CTS 465.

14  Treaty of Nerchinsk (n 1).

15  For this section, the author consulted the following source. From Wanguo Gongfa (n 3) 42–8.

16  AN Nussbaum A Concise History of the Law of Nations (Macmillan Company New York 1958) at 84–90. Also, Zhang Jianhua emphasizes the signing of the Peace Treaty of 1662 between the Dutch forces in Taiwan and Zheng Chenggong. See J Zhang Wan Qing Zhongguoren De Guojifa Zhishi Yu Guojia Pingdeng Gainian (Chinese Knowledge of International Law and the Concept of Sovereign Equality in the Late Qing Dynasty) (thesis Peking University 2003) at 11.

17  J Sebes The Jesuits and the Sino-Russian Treaty of Nerchinsk 1689: The Diary of Thomas Pereira (Institutum Histricum SI 1961 Rome) at 115–20.

18  The full title of this book by Emmerich de Vattel is Le droit des gens; ou, principes de la loi naturelle appliqués à la conduite et aux affaires des nations et des souverains. The first version was published in 1777, and republished in 1835–38 (Aillaud Paris). It was the leading work of the school of natural law at that time.

19  P Parker ‘The Tenth Report of the Ophthalmic Hospital, Canton, Being for the Year 1839’ (1840) 8 Chinese Repository 634–5.

20  H Chang ‘The Earliest Phase of the Introduction of Western Political Science into China, 1820–52’ (1950) 5 Yenching Journal of Social Studies 1–29 at 14.

21  The full title is The Law of Nations; or, Principles of the Law of Nature, applied to the Conduct and Affairs of Nations and Sovereigns. One theory argues that it was published in 1833. See W Wang ‘Lin Zexu Xu Fanyi Xifang Guojifa Zhuzuo Kaolue (A Study of Lin Zexu's Translation of Works on Western International Law)’ (1985) 1 Zhongshan Daxue Xuebao (Shehui Kexue Ban) 58–67.

22  China's Entrance (n 3) 123–5; ‘The Earliest Phase’ (n 20) 1820–52.

23  R Svarverud ‘Jus Gentium Sinense: The Earliest Chinese Translation of International Law with some Considerations Regarding the Compilation of Haiguo Tuzhi’ (2000) 61 Acta Orientalia 203–37.

24  Regarding these writings on international law recorded in Haiguo Tuzhi, Satō Shinichi argues that there are no records showing that these drew interest of the Chinese in this period, because the translation was fragmented and there were errors in the translation. See Intellectuals and Civilization (n 3) 202.

25  Treaty of Nanjing (n 13).

26  A Peters ‘Unequal Treaties’ in R Wolfrum (ed) The Max Planck Encyclopedia of Public International Law (Oxford University Press Oxford 2008) at <http://www.mpepil.com>.

27  China's Entrance (n 3) 130.

28  There are many editions of this work. It is presumed that Martin relied on the 6th edition published in 1855. C Chang ‘Bankoku Kōhō’ Seiritsu Jijyō To Honyaku Mondai’ (Circumstances over the Formation of Wanguo Gongfa and the Problem of Translation) in S Katō and M Maruyama (eds) Nihon Kindai Shisō Taikei (Japan's Modern Philosophy System) (Iwanami Shoten 1991) vol 15 (Honyaku No Shisō (Philosophy of Translation)), 381–400.

29  China's Entrance(n 3); P Duus ‘Science and Salvation in China: The Life and Work of W.A.P. Martin (1827–1916)’ in KC Liu (ed) American Missionaries in China (East Asian Research Center, Harvard University Press Cambridge MA 1966); The Clash of Empires (n 3).

30  On the Tianjin Treaty in 1858, see M Bannno China and the West, 1858–1861: The Origins of the Tsungli Yamen (Harvard University Press Cambridge MA 1964).

31  WAP Martin ‘Interesting from China’ New York Times (New York 8 January 1864).

32  KF Bruner, JK Fairbank, and R Smith (eds) Entering China's Service: Robert Hart's Journals, 1854–1863 (Council on East Asian Studies Harvard University Cambridge MA 1986) 295–306.

33  From Wanguo Gongfa(n 3) 48–9.

34  However, this Wanguo Gongfa is not a complete translation of Wheaton's work. Sections 17–19 in chapter 4 as well as the appendix are not translated. Also, rather than literally translating the original work, Martin's translation simplifies, or provides explanations beyond the original text, which Immanuel Hsü calls ‘paraphrastic interpretation’. See China's Entrance (n 3) 238.

35  Demand for Wanguo Gongfa increased afterwards, and various translations reprints were published. T Tian Guojifa Shuru Yu Wan Qing Zhongguo (Import of International Law and China in the Late Qing Period) (Jinan Chubanshe Jinan 2001) at 42; T Tian ‘Ding Weiliang Yu “Wanguo Gongfa”’ (William Martin and ‘Wanguo Gongfa’) (1999) 3 Shehui Kexue Yanjiu; The Clash of Empires (n 3) 117; Y Wang ‘ “Wanguo Gongfa” De Jige Wenti’ (Several Problems with Wanguo Gongfa) (2005) 3 Beijing Daxue Xuebao (Zhexue Shehui Kexue Ban) 78–86 at 78–9.

36  In Japan, the book was reprinted in Edo during 1865, and since then works on Wanguo Gongfa written by other authors besides Wheaton were translated one after another. In 1873, when Mitsukuri Rinshō translated T Woolsey's work, he used the term ‘kokusaihō’ for the first time to translate the term ‘international law’, and in 1884, the University of Tokyo used the term ‘kokusaihō’ to name a department. Since then, the term ‘kokusaihō’ became commonly used. See Z Ohira ‘Kokusai Hōgaku No Inyū To Seihō Ron’ (Importing the Study of International Law and the Theory of Natural Law) (1938) 2 Hitotsubashi Ronsō 464–36.

37  History of Modern Chinese (n 3) 278.

38  This is seen in the first Prince Gong's Address to the Throne. See Tongzhi Chao Chouban Yiwu Shimo (Complete Record of the Management of Barbarian Affairs: Tongzhi Dynasty) vol 27, at 25–6.

39  ibid vol 26, at 29–36.

40  China's first official Foreign Ministry was the Waiwubu, established in 1901. See S Kawashima ‘Gaimu No Keisei: Gaimubu No Setsuritsu Katei’ (The Formation of Foreign Affairs: The Process of Establishment of the Waiwubu) in T Okamoto and S Kawashima (eds) Chūgoku Kindai Gaikō No Taidō (Signs of Chinese Diplomacy in the Modern Period) (The University of Tokyo Press Tokyo 2009).

41  On the Jingshi Tongwenguan, see K Biggerstaff The Earliest Modern Government School in China (Cornell University Press Ithaca NY 1961); Z Sun Qingli Tongwenguan Zhi Yanjiu (A Study of Qingli Tongwenguan) (Jiaxin Shuini Gongsi Wenhua Jijinhui Taipei 1977); J Su Qingli Tongwenguan (self published 1978); J Su Qingli Tongwenguan Ji Qishisheng (Qingli Tongwenguan and Its Teachers and Students) (self published 1985).

42  The full title of the book is TD Woolsey Introduction to the Study of International Law: Designed as an Aid in Teaching, and in Historical Studies (James Monroe and Company Boston 1860). It was probably used as a textbook for international law at Yale University.

43  From Wanguo Gongfa (n 3) 126–7.

44  See Tongwenguan Timinglu (Curriculum of the Tongwenguan) (Guangxu Wunian Tongwenguan Diyici 1879). This source also includes examination questions. For example, in the Wanguo Gongfa exam in the fourth year ofGuangxu (1878), a total of ten questions were asked. Examples include: (1) every independent country holds the right to send diplomatic missions. How do you demonstrate this? (2) When one country dispatches a diplomatic mission to another country, the receiving side may reject the mission. What is the cause of this?

45  From Wanguo Gongfa (n 3) 130.

46  Xingyao Zhizhang was the translation of C Martens Le guide diplomatique: Précis des droits et des fonctions des agents diplomatiques et consularies (FHGeffcken ed) (FA Brockhaus Leipzig 1866) vol 1.

47  This speech by Martin shows that he made strenuous efforts to explain the significance of the Wanguo Gongfa in accordance with Chinese history. Martin likened relations among the different countries of the Spring and Autumn period to international relations in the late Qing period, and compared norms such as li with the Wanguo Gongfa. However, the Spring and Autumn period was generally regarded as a time of chaos and confusion, so it was unacceptable to set the norm of this period as a model. Also, to begin with, it was difficult to liken a core concept of Confucianism such as li to Western concepts. Above all, it was difficult for Qing's intellectuals to see Qing and Western countries as equals, as in the relations among the different countries of the Spring and Autumn period. In Shixi Jicheng (dated 19 January 1877), which is a report written by Qing's first Minister to Britain Guo Songtao while in office, Guo compares the Spring and Autumn period with the international relations of the late 19th century. He stated: ‘In recent years, major powers such as Britain, France, Russia, the United States, and Germany do compete with each other, but they have also created the Wanguo Gongfa to prioritize each other's faith, and value friendly relations. They value friendship, respect, and politeness for each other, so they have both deep characteristics and knowledge. This is far superior to relations among countries during the Spring and Autumn period.’ However, the content of this report by Guo was later strongly criticized by the Qing bureaucrats. See Intellectuals and Civilization (n 3) 69–78.

48  This book was co-translated with Wang Zhengsheng and published by Jiangnan Zhizaoju Fanyiguan.

49  RJ Phillimore Commentaries upon International Law (WG Benning and Co London 1871–74).

50  Regarding Martin's presentation, the author consulted M Harada ‘Jyūkyū Seiki Ajia No Kokusaihō Jyuyō To Bankoku Kokusaihō Gakkai: Shin No Kokusaihō Jyuyō To Bankoku Kokusaihō Gakkai (The Reception of International Law and the Institut de Droit International in 19th Century Asia: Qing's Reception of International Law and the Institut de Droit International)’ (thesis The University of Tokyo 2011).

51  (1879) 3 Annuaire de l’Institut de Droit International 300–5.

52  ibid 301.

53  ibid 302.

54  As a matter of fact, J Hornung had published his comments on Martin's 1881 speech in Berlin, Trace of International Law in China, that was later translated as Zhongguo Gushi Gongfa Lunlue by Wang Fengzao. Hornung stated: ‘This big county is not following the West as fast as Japan. It is not catching up with our norms and institutions like Japan. However, China is doing a pretty good job while protecting the country's traditions. Its development that is slowly being realized will be stable. And it is not to say that China's progress has been terribly delayed. … We have seen Chinese people apply our science and technology, so there is no mistake that China has a big future ahead. According to Martin, China and the United States will soon become the world's strongest countries. … Martin predicts that China's deployment of weapons is purely for defense purposes and it will not pose danger to the West. However, China may one day become a major hegemony. … In any case, we should hope that this new state that has risen in Asia will place its power in its obligations of civilization and law. Also, in conclusion, we should pay respect to Martin for his honorable and difficult work of understanding Ancient China.’ J Hornung ‘Note additionnelle’ (1882) 14 Revue de droit international et de législation comparée 242–3.

55  JH Ferguson ‘Les réformes judiciaires en Chine et dans le royaume de Siam’ (1890) 22 Revue de droit international et de législation comparée 251–78; M Féraud-Giraud ‘Les institutions judiciaires de l’Egypte’ (1890) 22 Revue de droit international et de législation comparée 70–82; ‘Analyse sommaire du rapport de M. Féraud-Giraud sur les institutions judiciaires de l’Egypte’ (1889–92) 11 Annuaire de l’Institut de Droit International 337–47.

56  WAP Martin ‘Une université en Chine: Le présent et l’avenir de l’enseignement supérieur international à Péking’ (1873) 5 Revue de droit international et de législation comparée 8–10.

57  AMG Moynier ‘Le Chine et le droit international’ (1885) 17 Revue de droit international et de législation comparée 504–9.

58  T Okamoto Zokkoku To Jishu No Aida: Kindai Shin Kan Kankei To Higashi Ajia No Meiun (Between Dependency and Sovereignty: Sino-Korean Relations in the Late Nineteenth Century and the Fate of the Far East) (The University of Nagoya Press Nagoya 2004).

59  K Hakoda ‘Chūei “Biruma-Chibetto Kyōtei” (1886 Nen) No Haikei: Shin Matsu Chūgoku Gaikō No Seikaku Wo Meguru Ichi Kousatsu (The Background of the Sino-British “Burma-Tibet Convention” (1886): A Study on the Characteristics of Chinese Diplomacy in the Late Qing Dynasty)’ (2005) 88 Shirin 233–58.

60  An exception was Siam, which rejected to enter into diplomatic relations with Qing. As a result, Qing could not set up a legation or a consulate, so overseas Chinese in Siam were treated at citizens of Siam. S Kawashima Chūgoku Kindai Gaikō No Keisei (The Formation of China's Modern Diplomacy) (The University of Nagoya Press Nagoya 2004).

61  T Okamoto and T Motegi ‘Chūka Teikoku No Kindaiteki Saihen: Zaigai Kajin Hogoron No Taitō Wo Megutte (Modern Reorganization of the Chinese Empire: Regarding the Rise of the Theory to Protect Overseas Chinese)’ in Signs of Chinese Diplomacy (n 40) 139–58.

62  E Motono Conflict and Cooperation in Sino-British Business, 1860–1911: The Impact of the Pro-British Commercial Network in Shanghai (St Antony's Series Palgrave Macmillan Basingstoke 2000).

63  F Xue Lun Zhongguo Zazi Gongfawai Zhi Guo (Arguments on affect for China as a Country Outside Public Law) (1892).

64  Intellectuals and Civilization (n 3) 148–9.

65  Guangxu 29, 26 November (13 January 1904), Zhang Baixi, ‘Jingshi Daxuetang Zhangcheng (Futong Ruyuan Zhangcheng)’.

66  M Banno Chūgoku Kindaika To Ba Kenchū (China's Modernization and Ma Jianzhong) (The University of Tokyo Press Tokyo 1985); T Okamoto Ba Kenchū No Chūgoku Kindai (Ma Jianzhong's Modernization of China) (The University of Kyoto Press Kyoto 2007).

67  H Shinohara ‘W.W. Wirobī To Senkanki Beichū Kankei: Shuken Kokka To Shite No Chūgoku’ (W.W. Wiloughby and Sino-U.S. Relations during the Interwar Period: China as a Sovereign State) (1998) 118 Kokusai Seiji (Beichū Kankei) 9–26.

68  Z Huang Sanshi Nian Riji (Thirty-Year Diary) (Changsha Hunan Yinshuguan 1933) vol 1 (Liuxue Riji (Diary from Study Abroad)), at 317.

69  G Xu China and the Great War: China's Pursuit of a New National Identity and Internationalization (CUP Cambridge 2005); Y Zhang China in the International System, 1918–20: The Middle Kingdom at the Periphery (Macmillan Press London 1991).

70  See the following for how the tribute relationships until the second half of the 19th century were recognized by China during the first half of the 20th century. S Kawashima ‘China's Re-Interpretation of the Chinese “World Oder,” 1900–40s’ in A Reid and Y Zheng (eds) Negotiating Asymmetry: China's Place in Asia (National University of Singapore Press Singapore 2009) 139–58.