Most disciplines are articulated around some carefully designed disciplinary histories. Such disciplinary histories are indispensable for disciplines to ground themselves as much as their object and methods of inquiry into a past that is held as being real rather than imaginative.Footnote 1 Once grounded into a past deemed real, disciplines as much as their object and their methods of inquiry come to be experienced as a universal necessity. Interestingly, the constitution of a past deemed real into which disciplines can be grounded is often produced through the narrativization of some key and carefully selected events as part of an order of meaning which confirms the reality of the disciplines concerned.Footnote 2 The constitution of a past deemed real though the narrativization of some key and carefully selected events is a very common discursive device to confer upon disciplines, their object, and their methods of inquiry, a universal necessity.
International law is not different. In fact, international law is constantly presented as being grounded in some key past events which are themselves narrativized as part of an order of meaning which confirms the universal necessity of international law.Footnote 3 This article focuses on one of such key events, namely the so-called encounter between China and international law in the nineteenth century. In fact, just as the so-called Peace of Westphalia was made as a founding moment of international law,Footnote 4 the encounter between China and international law came to be presented as a very central event in the history of international law and made part of an order of meaning reinforcing the universal necessity of international law, of its object, and of its methods of inquiry.
What is particularly striking regarding the elevation of the encounter of China and international law into a key event of the history of international law and its belonging to an order of meaning that confirms the universal necessity of international law is that this set of facts is registered as such in both English-speaking and Chinese-speaking scholarship. Said differently, English-speaking and Chinese-speaking scholars embrace what is called here a shared eventalization. As is shown here, this shared eventalization is not the only resemblance between English-speaking and Chinese-speaking historical narratives. In fact, the facts constitutive of the encounter between China and international law are not only recognized as a central event of the disciplinary history of international law in both English-speaking and Chinese-speaking scholarship but are narrated in the same way in both bodies of literature, thereby denoting a shared narrativization in the historical narratives around which they are organized. Indeed, in both English-speaking and Chinese-speaking literature, most accounts of the encounter between China and international law are articulated around a narrative of imposition whereby international law is said to have been imposed by Western powers on China.
The fact that the encounter between China and international law is subject to a shared eventalization as well as a shared narrativization in both English-speaking and Chinese-speaking literature, is an important premise for the argument developed in this article. It is argued here that these shared eventalization and narrativization of the facts constitutive of the encounter between China and international law actually hide that the English-speaking and Chinese-speaking histories of international law respectively offer two very distinct tales of this encounter. In other words, behind the elevation of the encounter between China and international law into a central event of the history of international law (shared eventalization) and its subjection to the same narrative of imposition (shared narrativization), the encounter between China and international law is registered as belonging to divergent orders of meaning in the English-speaking and Chinese-speaking literature. Although this article primarily aims to shed light on the different orders of meaning at work behind the shared eventalization and narrativization witnessed in the English-speaking and Chinese-speaking histories of international law, it will show that the divergences between the orders of meaning pursued by each of these bodies of literature are everything but innocent.
A few terminological observations are in order. First, for the sake of this article, eventalization refers to the particularization of a set of facts into a key historical marker and their recognition as an unordinary occurrence with a view to segmenting and organizing the historical discourse.Footnote 5 As far as international law is concerned, the common elevation of the publication of Grotius’ De Jure Belli ac Pacis, the Peace of Westphalia, the encounter between China and international law, the Alabama arbitration, the Hague Peace conferences, etc. into key events of the history of international law constitute a specific – and certainly not innocent – type of eventalization. Second, by narrativization, this article refers to the organization of the past around a type of intrigueFootnote 6 or plotFootnote 7 whereby a form is conferred upon an otherwise formless past.Footnote 8 From this perspective, narrativization is more than mere chronolization or any other type of narration in that it produces far more meaningFootnote 9 and resorts to a much wider range of discursive devices.Footnote 10 When narrativization, so understood, is successful, it generates an effet du réel Footnote 11 (reality effectFootnote 12) in the present,Footnote 13 that is it makes history belong to the category of the discourses of the real as opposed to the discourses of the imaginary.Footnote 14 In international law, the dominant narrativization manifests itself, for instance, in the postulations of causal and linear relations between Grotius and the consolidation of modern international law, between the Alabama arbitration and the peace project of international law, between decolonization and universality, etc., such propositions being always presented as propositions about the real. Third, in this article, the notion of the tale is used as a shortcut for the order of meaning in which the facts that are eventalized and narrativized are registered.
This article is structured as follows. It first briefly outlines the shared eventalization and narrativization of the encounter between China and international law in the English-speaking and Chinese literature (Section 2). This article then sheds light on how, despite sharing a shared eventalization and narrativization, the English-speaking and Chinese-speaking literature diverge as to the order of meaning in which the encounter between China and international law is registered and reflects on the driving forces behind this registration of the encounter between China and international law in two distinct orders of meaning (Section 3). This article ends with some concluding observations (Section 4).
Three final caveats are warranted at this preliminary stage. First, the point in this article is not whether there has actually been such a thing as an ‘encounter’ between China and international law or whether international law has been imposed ‘for real’. After all, as long as an event is made part of a past deemed real by most international lawyers and given a place in the disciplinary history of international law, this event is real for them.Footnote 15 What matters here is how that past is made real and why it is made real the way it is made real. This article is thus not meant to contribute to the historical study of the encounter between China and international law but, more modestly, to provide an inquiry into the contingency (and politics) of the discipline’s self-grounding in a past that it deems real.
Second, a clarification is needed as to what this article means when it refers to the ‘English-speaking’ and ‘Chinese-speaking’ literature. For the sake of this article, the distinction between ‘English-speaking’ and ‘Chinese-speaking’ literature is based solely on the language in which the literature concerned is written, irrespective of the origin, mother tongue or affiliation of the author. This specific way of distinguishing between English-speaking and Chinese-speaking bodies of literature, like any construction of difference,Footnote 16 is certainly not unprejudiced. Among others, this particular understanding of the distinction between ‘English-speaking’ and ‘Chinese-speaking’ literature entails that, in this article, the former category will include the many works written by Chinese scholars in English. In that respect, a specific observation must be made about Wang Tieya’s famous work as it appears in the 1991 Collected Courses and as it originates in his lectures at The Hague Academy of International Law. Wang’s work elaborates on the encounter discussed here. The text was originally published in English and later translated to Chinese and published in the 1991 Chinese Yearbook of International Law. This Chinese translation has since been widely cited by later generations of Chinese international lawyers on the topic. In accordance with the abovementioned distinction between ‘English-speaking’ and ‘Chinese-speaking’ literature, the two versions of Wang’s work are discussed below under the umbrella of ‘English-speaking’ literature and ‘Chinese-speaking’ literature respectively.Footnote 17
Third, it must be acknowledged that this article is itself drawn into the historical narratives it discusses, thereby perpetuating and contributing to the eventalization, narrativization, and order(s) of meaning that such narratives perpetuate. In other words, this article is itself not innocent as to the account it provides of the two tales of the encounter between China and international law.Footnote 18 In that sense, the very politics at work in the current histories of international law witnessed in the English-speaking and Chinese-speaking scholarship continue to pervade the very scrutiny thereof which is attempted here.
2. A shared eventalization and narrativization
The shared eventalization and narrativization of the sets of facts constitutive of the encounter between China and international law in the English-speaking and Chinese-speaking literature are well-known and ought only to be briefly reminded here. According to such shared eventalization and narrativization, China, following the Opium wars in 1839–1842 and in 1856–1860, was compelled, through the threat to use force and in some instances actual use of force, into a series of international treaties with Western powers constitutive of the so-called treaty port system – sometimes referred to through its oriental equivalent of capitulations.Footnote 19 This treaty port system imposed upon China by Western powers provided for juridical and trade privileges, especially in terms of guaranteed entry of goods, freedom of trade and religion, reduction of tariffs, most-favoured treatment, the renunciation to the subjection of foreigners to Chinese law, and the extraterritorial exercise of jurisdiction through consuls in some determined ports.Footnote 20 From this very dominant perspective permeating both the English-speaking and Chinese-speaking literature, the first international legal regime which bound China amounted to a complex conventional regime imposed upon it by Western powers.Footnote 21 In that common narrative of imposition, international law stands for many things, be it a pre-existing body of rules, an idea, a culture, an idiom, a diplomatic apparatus, etc. Yet, whether the object of this narrative of imposition is a pre-existing body of rules, an idea, a culture, an idiom, a diplomatic apparatus, etc., this narrative is always one that sets up an unequal relationship between two geographically located entities, one subduing the other.
Such eventalization and its narrativization, in terms of the imposition of international law upon China, dominates the twentieth century and twenty-first century English-speaking international legal literature.Footnote 22 It is also heard in French-speaking literature.Footnote 23 The same narrative is espoused by twentieth century Chinese scholars writing on international law in English.Footnote 24 In Chinese literature, this encounter between China and international law is similarly eventalized and narrativized in a way that presents international law as a tool of Western invasion.Footnote 25 If the invasion by warships was straightforward, the ‘sugar-coated bullets’ of international law was seen as ‘more aggressive and having a stronger permeabilising effect’.Footnote 26
It is important to stress that, whilst sharing the same broad eventalization and narrativization of the facts constitutive of the encounter between China and international law, the English-speaking and Chinese-speaking literature – unsurprisingly – offered a wide range of variants thereof. Some of the particular traits of the eventalization and narrativization found in the English-speaking and Chinese-speaking literature must be mentioned here.
2.1 The narrative of imposition in the English-speaking literature
In the English-speaking literature, the general narrative of imposition is commonly supplemented by specific narratives like those that emphasize the consistency of the treaty port system with the China-centric world view of the Qing dynasty. Indeed, it is sometimes claimed in the English-speaking literature that, for the Qing dynasty with whom such treaties were negotiated, foreign nationals were deemed standing at a lower level of civilization than Chinese in China and therefore could not fall within the scope of Chinese law and tributary system.Footnote 27 In the same vein, it is said that the treaty port system and capitulations were a compromise between China’s own tributary system and international law and can be read as China’s own way to give Western powers a place in the Chinese world.Footnote 28 Likewise, it is sometimes heard that the Qing dynasty never sought any recognition of sovereign equality which would have contradicted its own world view.Footnote 29 In particular, it is reported that starting with the Treaty of Nanjing, the Qing dynasty made it a point that such treaties do not recognize any sovereign equality between China and Western powers.Footnote 30 In that sense, the specific juridical and trade privileges provided by the treaty port system to Western powers are read as accommodating China’s understanding of the world and thus as being no privilege of Western powers in the first place.Footnote 31 In the English-speaking literature, such occasional accounts of the treaty port system as reflecting the preferences of the Qing dynasty are sometimes completed by claims that the consular jurisdiction granted to Western powers did not contradict Chinese historical precedents of extraterritoriality that had been granted long before the nineteenth century.Footnote 32 From this perspective, the long tradition of treaties granting extraterritorial jurisdiction had never been controversial because of the Chinese understanding of jurisdiction as being primarily personal rather than territorial.Footnote 33 The same holds for the most-favoured nation clause which could be ‘regarded as universal benevolence equally provided by the emperor’, being something that only the Emperor could provide to others and which others could not provide to the Emperor.Footnote 34 It has also been claimed that the treaties concluded by the Qing dynasty were also concluded with non-European powers which would not have necessarily been in a position to impose anything on China.Footnote 35
Another variant found in the English-speaking literature holds that when negotiating and concluding such treaties, the Qing dynasty did not deem them unequal.Footnote 36 According to such accounts, although the Qing dynasty later recanted its support for such treatiesFootnote 37 and made termination a central foreign policy objective,Footnote 38 the Qing dynasty never called such treaties unequal. The term ‘unequal treaties’ is said to be a twentieth century invention and is commonly traced back to the 1920s Chinese nationalists,Footnote 39 which is supposedly confirmed by the negotiation and implementation of such treaties.Footnote 40
Some other accounts in the English-speaking literature show that the imposition witnessed in the nineteenth century between China and international law has not been that of a body of formal rules but of the vocabulary and discursive categories.Footnote 41 According to such an understanding, the treaty port system should not be construed as a crude form of sovereign colonialism but rather a form of colonizing thinking.Footnote 42
Post-colonial studies have similarly added a new dimension to the narrative of imposition that traditionally populates English-speaking literature. Indeed, such authors have demonstrated the extent to which international law was constituted by its encounter with China as well as other non-Western entities. In particular, drawing on the post-colonial critique of orientalism,Footnote 43 such international legal studies have shown that international law was shaped by the encounter with non-European actors, thereby encoding within the very legal forms of international law the discriminatory features that drove colonialism.Footnote 44 From that perspective, the encounter of international law with China through the treaty port system cannot be limited to a mere exercise of force but should also be read as a foundational event that made international law what it is.
2.2 The narrative of imposition in the Chinese-speaking literature
The Chinese-speaking literature provides specific variants of the abovementioned shared eventalization and narrativization of the set of facts constitutive of the encounter between China and international law and especially of the narrative of imposition. Three elements of this eventalization and narrativization are worth noting here.
First, the Chinese-speaking literature, especially works that attempt to present an overall review of the history of international law in China, tends to sketch a largely consistent storyline.Footnote 45 This story starts with the Western imposition of international law upon China in the late Qing dynasty, focusing on the treaty port system, the privileges enjoyed by the West and the humiliation on the Chinese part. It then goes on to recount how the Chinese dealt with this situation in various ways, usually culminating in the establishment of the People’s Republic of China (the PRC) in 1949, which is seen as marking the true independence of China and the end of the humiliation past.
In this storyline, the ‘encounter’, or the ‘introduction of international law into China’, is placed in the context of the Western invasion of China. International law is viewed as a tool in facilitating and legitimizing such invasion, epitomized by the treaty port system.Footnote 46 International law textbooks usually have a section on ‘China and international law’ in the chapter on the history of international law, which describes the treaties establishing the treaty port system and lists the many privileges Western powers ‘plundered’ through such treaties.Footnote 47 Thus, this narrative concerning the treaty port system typically stresses the unequal nature of the treaties concerned, the fact that they were imposed upon China by force or the threat of force, and the ‘humiliation’ on the Chinese part. Wang Tieya, for example, used repeatedly the word ‘humiliation’ when recounting this history.Footnote 48 Likewise, He Zhipeng and Sun Lu used ‘the humiliation of the encounter between modern China and international law’ to capture the historical period of the late Qing dynasty.Footnote 49
Another important theme in this storyline is the ‘double face’ and ‘hypocrisy’ of international law. Yang Zewei, for example, pointed out that although the West introduced international law to China, they applied international law only among themselves. When it came to their relationship with China, it was instead the unequal treaty port system that applied, which granted the West privileges and facilitated their oppression and exploitation.Footnote 50 This double standard of applying different sets of rules based on a division of the world into ‘civilized’, ‘barbarian’, and ‘semi-barbarian’ nations is noted by many Chinese authors.Footnote 51 Therefore, international law is viewed as a hypocritical pretext for Western aggression, a ‘cloak’ that covers the bullying of the weak by the powerful colonizers.Footnote 52
He Zhipeng argues that this historical experience and understanding of international law as ‘hypocritical’ have a direct impact on the contemporary Chinese attitude towards international law. He listed various incidents throughout the first half of the twentieth century, including the Treaty of Portsmouth between Russia and Japan in 1905, China’s experience at the Paris Peace Conference in 1919, and the reaction of the League of Nations after the Japanese occupation of the northeast of China in 1931, to demonstrate how international law had ‘betrayed’ the Chinese, and thus made it difficult for the Chinese to trust international law even today.Footnote 53 Zhang Yongle also referred to the disillusion of Chinese elites at the Paris Peace Conference and asserted that it had an even more profound impact: awakened by such disillusion, the Chinese revolutionists gave up the ‘old path’ of following the footstep of the West and seeking their recognition; instead, they denied the Western hierarchy of civilization, and sought to establish a new world order.Footnote 54
A second notable feature of the narrative of imposition in the Chinese-speaking literature is that the encounter of China and international law is seen first and foremost as an ‘encounter of civilizations’. For example, as a historian, Lin Xuezhong studies the ‘introduction of international law’ not as part of a disciplinary history of international law, but as an analytical framework to examine the modern Chinese state-building process. Thus, Lin sees international law as a new value system and conceptual paradigm, the introduction of which ultimately changed the way in which the Chinese understood and constructed the world order.Footnote 55
Indeed, it is a common feature, especially among the works of historians, to view the introduction of international law as a process of introducing new concepts, ideologies and ways of thinking that challenged the traditional Chinese world order and ultimately led to the reconstruction of a new ‘world image’ in the Chinese mind.Footnote 56 In this process, the concept of ‘civilization’ is considered the ‘main thread’.Footnote 57 For many, the so-called ‘civilization’ is only Western ‘civilization’, and international law is seen as a ‘carrier’ of Western culture and values, and thus the imposition of international law upon China signifies the imposition of Western civilization.Footnote 58 It is also argued that even today, this mentality of the West to impose its own civilization upon the non-Western world is still present, albeit taking more subtle forms.Footnote 59
Legal historian Lai Junnan, on the other hand, considered that what was most important was not the never-defined standard of ‘civilization’, but the discourse of ‘civilization’, which divided the world into ‘civilized’ and ‘uncivilized’, and applied to them different legal regimes.Footnote 60 Thus, Liu Wenming considers ‘civilization’ as a concept that Western states used to serve their colonizing projects, based on which they constructed a hierarchical world order.Footnote 61 But interestingly, as Lai pointed out, this also means that ‘civilization’ became the hope of the colonized states: if they manage to become a ‘civilized’ country, they would become equal to the colonizers.Footnote 62
This paradox leads to the third point we want to highlight in the Chinese-speaking literature on the ‘encounter’, i.e., there is a certain ambivalence towards the introduction of international law. On the one hand, Western invasion and the dubious role of international law in serving Western colonial projects are criticized. On the other hand, it is acknowledged that China’s acceptance of international law and entry into the international system is a positive, progressive development. One typical example is the story of W. A. P. Martin’s translation of Wheaton’s Elements of International Law (titled ‘Wanguo Gonfa’ in Chinese, meaning ‘public law of all nations’) to which the attention must turn briefly.
The translation of Wanguo Gongfa is a central marker in the eventalization and narrativization of the encounter between China and international law in the Chinese-speaking literature.Footnote 63 It is generally considered the beginning of the ‘formal and systematic’ introduction of international law in China.Footnote 64 It is thus often acknowledged that Martin’s work had, ‘objectively’, some positive effects, including brought to China knowledge about the international system, helped Qing officials in their diplomatic activities, and promoted the ‘modernisation of China’s diplomacy’.Footnote 65 On the other hand, historians and lawyers alike conducted extensive research upon the motivation of Martin in translating this text. The mainstream holds a critical view which believes that the purpose of his translation was to justify Western intervention, to urge the Chinese to accept Western norms, and to force China into the Western world order.Footnote 66 Mention is also commonly made to Martin’s religious purpose of teaching the Qing government ‘God and his eternal truth’, and bring to the Chinese ‘some Christian spirit’.Footnote 67 This sort of evaluation of something having certain ‘objectively’ positive effects but carrying a malicious purpose is frequently seen in the Chinese-speaking literature concerning the encounter of China and international law.Footnote 68
In fact, such ambivalence already existed in the process of the ‘encounter’, which has been the subject of much scholarly attention. Lin Xuezhong examined how late Qing Chinese officials and intellectuals understood international law both as an instrument for Western invasion and as a potential tool for the independence and development of China.Footnote 69 Lai Junnan analysed how the Chinese in the late Qing dynasty had misunderstood international law, and thus had difficulty and pain in reconciling the natural law promise of justice and the reality of inequality and exploitation by the West.Footnote 70 Philosopher Wang Zhongjiang studied the contradictory views on international law among late Qing Chinese and explained such contradiction by referring to their different roots in Chinese traditional thinking, and different reactions to the colonial situation of China at that time.Footnote 71 It is interesting to see that such contradictions and ambivalence are still present today. According to He Zhipeng and Sun Lu, this ambivalence is indeed the general attitude of China towards international law even today, and it has everything to do with China’s experiences and memories of the history of the ‘encounter’.Footnote 72
3. Two tales of an encounter
Whilst the English-speaking and Chinese-speaking literature provide, notwithstanding the many variants and specific twists which have been outlined in the previous section, a shared eventalization and narrativization of the set of facts constitutive of the encounter between China and international law, it is argued in this section that what is made of such encounter in each of these bodies of literature is very different. This section elucidates the very distinct tales of the encounter between China and international law – and thus the orders of meaning in which the facts constitutive thereof are registered – that are found in the English-speaking and Chinese-speaking scholarship respectively. In shedding light on the diverging tales at work in the English-speaking and Chinese-speaking scholarship, this section will show that these divergences are not innocent.
3.1 The English-speaking literature: A modern tale
It is argued here that, as far as the English-speaking literature is concerned, the eventalization and narrativization of the set of facts constitutive of the encounter of China and international law in terms of imposition fit well with the modern modes of thinking about international law. In that sense, such an eventalization and narrativization can be seen as the manifestation of a very Western modernism. It suffices here to mention a few of the modern traits of the eventalization and narrativization of the set of facts constitutive of the encounter of China and international law in terms of imposition. For instance, it can be said that the narrative of imposition provides a spatial origin to the universality of international law, one that is spatially and temporarily identifiable and traceable.Footnote 73 The origin provided by the dominant eventalization and narrativization is one that is internal to international law as it is the latter that has been supposedly extended spatially and temporarily, thus owing its universality only to itself. Such a type of internal and self-referential origin is a common mark of modern legal thought.
The eventalization and narrativization of the set of facts constitutive of the encounter of China and international law in terms of imposition also has the effect of locating international law in time and space. Indeed, according to this eventalization and narrativization, China is just a piece of that space to which international law can apply to. Thus, by virtue of such eventalization and narrativization, international law is presented as created somewhere and then extended to somewhere else in space, leaving no space potentially unabsorbable in the space of international law. This eventalization and narrativization thus perpetuate the general modern geographical mapping of the world. At the same time, the eventalization and narrativization of the set of facts constitutive of the encounter of China and international law nourishes a very linear temporality. In fact, by virtue of this encounter, there is a precise and identifiable ‘before’ and ‘after’ the encounter of China and international law. The rift in time and space between an international law made in Europe and a Chinese empire alien to international lawFootnote 74 is bridged, all of it being absorbed in a commensurable time and space. In the same vein, the eventalization and narrativization of the set of facts constitutive of the encounter of China and international law in terms of imposition presupposes a universal translatability of international legal texts, of the latter categories and concepts.Footnote 75 It is as if international law is semantically, conceptually and culturally translatable into Chinese terms and categories of thoughts and addresses any types of relations between China and other entities.Footnote 76 Such a type of commensurability and totalizing thinking is a common trait of European modern thinking.Footnote 77
The narrative of imposition presupposes that there was such a thing as a stable set of international legal rules and international legal principles applied by a certain set of actors which was simply and mechanically extended as to apply to a new actor which had so far remained alien to it. In particular, this narrative of imposition is premised on some preconceived materiality of international law, the movability of the latter in what is supposed to be a common shared space, and a certain idea of material encounter with a subject or territory which had not yet experienced such materiality.Footnote 78 This whole idea of encounter, albeit forced or under the threat of the use of force, is built on a presupposed shared materiality as well as shared space and the possibility of the former being experienced in the latter.
The eventalization and narrativization of the set of facts constitutive of the encounter of China and international law in terms of imposition can also be read as a mode of silencing an ‘other’. Indeed, according to such eventalization and narrativization, China is an ‘other’ which international law speaks on behalf of.Footnote 79 China is never defined but through what international law says it is. And this is how, as is commonly acknowledged today,Footnote 80 what allows the eventalization and narrativization of the set of facts constitutive of the encounter of China and international law in terms of imposition perpetuate an image of a world dominated by the West and shaped around a Western-centric geography while producing a history according to very modern and European terms.Footnote 81 In this respect, there seems to be no doubt that this narrative of imposition reinforces the centrality of Europe and perpetuates the making of the history of international law a part of the history of Western civilization. In the same vein, such eventalization and narrativization bear strong empowering dimensions, obviously for the Western imposers which are held to be ‘powers’, but also for the Chinese recipient of international law which are, in this narrative, represented as mighty, but just not as mighty enough to resist the mightier Western powers.
The eventalization and narrativization of the set of facts constitutive of the encounter of China and international law in terms of imposition can thus be read as a very modern construction whose resilience in the English-speaking literature should thus not be surprising. As has been discussed here, such eventalization and narrativization register the encounter of China and international law in a very modern order of meaning, one that organizes origin, space, time, rules, and ultimately the other.
3.2 The Chinese-speaking literature: A tale of nation-building
It is submitted here that the very same eventalization and narrativization of the set of facts constitutive of the encounter of China and international law in terms of imposition come to serve a very different take in the Chinese-speaking literature. In the Chinese-speaking literature, such eventalization and narrativization situate the ‘encounter’ within the tale of the modern Chinese nation-building process.
In Wang Zhongjiang’s article about late Qing Chinese attitudes towards international law, Wang ends his analysis with a very interesting question: ‘In their [late Qing Chinese] mind, why would not China, a country that had maintained the central position in the world for a very long time, possess the power of a strong nation once again?’Footnote 82 Wang’s purpose is to analyse the attitudes of late Qing Chinese towards international law, but he ends by posing a question concerning the destiny of China. In fact, this is common in the Chinese-speaking literature on the ‘encounter’. They might be concerned with the general history of international law in China, or with very specific issues like the translation of a single concept. But no matter what the specific focus is, there seems to be a common understanding of viewing the introduction of international law first and foremost as a critical event in the modern Chinese nation-building process. As legal scholar He Qinhua put it, the most important feature of the development of modern Chinese international law as a discipline, is that it went hand in hand with ‘the process of “the Chinese people have stood up”’.Footnote 83
‘The Chinese people have stood up’ is a famous slogan often attributed to Mao Zedong at the ceremony of the establishment of the PRC in 1949, although it was actually said on other occasions.Footnote 84 In any case, in the Chinese collective memory, it has become a powerful and symbolic declaration of the independence of China, ending the ‘one hundred years of humiliation’ at the hands of Western and Japanese invasion since the First Opium War of 1840. Indeed, the establishment of the PRC is the climax in the official and mainstream tale of modern Chinese nation-building, which, before Mao’s proud announcement of victory, is full of pain, suffering, struggle, and, above all, ‘humiliation’.
The discourse of national humiliation already took shape at the beginning of the twentieth century, and is one of the few discourses that are endorsed by both the Nationalists and the Chinese Communist Party (the CCP).Footnote 85 It was replaced by a ‘victory narrative’ in the Mao era, which emphasized class struggle rather than foreign invasion as the cause of Chinese sufferings, and emphasized victory rather than humiliation.Footnote 86 After the end of the Cultural Revolution (1966–1976), as the communist ideology lost credibility, and especially after the Tiananmen protest, the CCP resorted to patriotism as its principle basis of legitimacy. Modern Chinese history became an important part of this ideological campaign as the CCP was portrayed as the saviour of China from the ‘humiliation’ inflicted by foreign invaders.Footnote 87 The ‘humiliation narrative’ has since become the master narrative in China on modern Chinese history. Through history education, museums, commemorations, and popular culture, it permeates into every aspect of the daily life of the Chinese, and becomes deep-rooted in the Chinese psyche.
The eventalization and narrativization of the set of facts constitutive of the encounter of China and international law operate within the confines of the master ‘humiliation narrative’ and forms part of it. The literature examined above all share this historical narrative as their common background, even though the research questions and objectives of the authors vary. Among the authors we examined, some particularly stress the ‘humiliation’ and pain suffered by the Chinese and the injustice and hypocrisy of international law and of Western powers,Footnote 88 while others, and particularly later generations of scholars, have less interest in the ‘humiliation’ per se. Lin Xuezhong, for example, deliberately chose to avoid an ‘aggression-resistance’ or ‘anti-imperialism’ analytical framework.Footnote 89 Likewise, Lai Junnan states that compared to criticizing what the ‘imperialist’ countries did, it is more important to reflect upon the ‘more fundamental structural elements’ underlying their behaviours.Footnote 90 Nevertheless, this does not mean that they do not endorse the ‘humiliation narrative’. On the contrary, it is precisely because the humiliation and suffering of China during this period of time had become an established fact that they felt no need to dwell on it anymore.Footnote 91
On the other hand, ‘humiliation’ is not just about victimization, but also about resistance and victory. In this sense, the narrative of imposition is not only about China’s forced acceptance of international law, but also about how the Chinese struggled to find a way to react to such imposition. As Lin Xuezhong put it, the introduction of international law is in fact ‘a process of continuous local interpretation, application and appropriation’.Footnote 92 Other authors also emphasized the active attempt to interpret and apply international law by the Chinese to their own benefits at the time of the ‘encounter’.Footnote 93
Furthermore, the eventalization and narrativization of the set of facts constitutive of the encounter of China and international law are as much about the past as it is about today and the future. Thus, we find He Zhipeng and Sun Lu sketching a storyline from ‘the humiliation of the encounter between modern China and international law’ to ‘China’s return to the international system and gradual rise’;Footnote 94 we find Lai Junnan asking how to build an international society with shared values but at the same time respecting the differences of nations, and what contributions different nation-states should make in building such an international society.Footnote 95 Zhang Yongle’s review of China’s historical interaction with international law likewise leads to a future direction: China will not be merely a ‘follower’ of the Western rules of the game, but should aim at providing the ‘Chinese solution’ to the world’s common problems, and having a bigger impact on ‘other nations and civilisations’.Footnote 96
In this sense, if the eventalization and narrativization of the set of facts constitutive of the encounter of China and international law posit the ‘encounter’ as part of the tale of modern Chinese nation-building, the story does not end there. It is ‘to be continued’ and connected with the later story of the further development and ‘rise’ of the nation. The literature examined here thus also forms part of a larger body of literature on the relationship between China and international law, which is showing growing interest in the future role of China in shaping international law.Footnote 97
While the reading of this growing body of literature is beyond the scope of this article, it is worth noting the connection, as well as the fact that this later body of literature seems to reflect precisely the reality of China’s rise and the scholarly reflections upon China’s new role in the world. Scholars, as individuals, certainly have their own objectives, believes and sentiments, but they are also inevitably influenced by the consciousness of their time, and such influence is often reflected in scholarly works. Such works would become part of a textual discourse, or discourses, which, in turn, would contribute to shaping the consciousness of the time. Our discussion here is concerned with these textual discourses and the consciousness they reflect, not the personal objectives or believes of the authors. And it is in these textual discourses we observed the entanglement of the story of the ‘encounter’ with the story of modern Chinese nation-building, a story that contemporary authors are continuing to write and nourish.
4. Concluding remarks: Inverse symmetries and the possibility of a disciplinary history
The foregoing has shed light on the shared eventalization and narrativization of the facts constitutive of the encounter between China and international law witnessed in English-speaking and Chinese-speaking literature. It has shown that albeit espousing a shared narrative of imposition (Section 2), the English-speaking and Chinese-speaking literature have registered the facts constitutive of the encounter between China and international law in a very distinct order of meaning, thereby producing very different tales about it (Section 3).
It is submitted at this ultimate stage that, in the previous sections’ account of the encounter of China and international law found in the English-speaking and Chinese-speaking literature, there are more than two distinct tales. There are tales that are inversely symmetrical. Indeed, when taken individually, each of these tales speaks about and on behalf of another that is absent. As was highlighted above, when individually speaking about the absent other, each of them constitutes the speaking subject. Yet, the symmetry goes further than that: the speaking subject of each of these two tales constitutes the absent other in the other tale. In fact, the absent China in the English-speaking modern tale on behalf of which it is spoken and which comes to constitutes the West is the very subject of the national tale which dominates the Chinese-speaking literature. Conversely, the absent West in the Chinese-speaking national tale on behalf of which it is spoken and which comes to constitute the national China is the very subject of the modern tale which dominates English-speaking literature. Said differently, the absent other in each of these tales is the constituted subject of the other tale.
Mentioning the reverse symmetry of the two tales of the encounter between China and international law is not meant to be in any way spectacular, let alone surprising.Footnote 98 What such reverse symmetry shows, however, is that disciplinary histories, just like that of international law, are plural and coexist side-by-side without contradicting one another, and always leaving the impression that the discipline is built on a unique and universal history made of the same events and narrativized the same way. That claim can even be pushed further. It is the possibility of coexisting but inversely symmetrical tales about the history of the discipline that allows the discipline to have a disciplinary history in the first place and that enables that disciplinary history to be experienced as a universal necessity by all the members of that discipline.