• 1 M. Craven, « Introduction : International Law and its Histories », Developments in International L (...)
• 2 M. Koskenniemi, « The History of International Law Today », Rechtsgeschichte (2004). Today in part (...)

1In recent decades, the history of international law has attracted the attention of a growing number of academics and lawyers. Its shortcomings, reported by the jurist Lassa Oppenheim at the beginning of the twentieth century but then ignored by several generations of functionalists, seem to have at last been eliminated by the so-called historiographical turn1. The new interest in international legal history is related to the current time of crisis, the sense of uncertainty generated by the collapse of the Cold War order, and the recent establishment of the ‘war on terror’ doctrine dictated by US hegemony. For many jurists, if developments in international law over the last three decades— particularly after the September 11, 2001 attacks on the US —did not necessarily put an end to the cosmopolitan project that so far characterized the modern history of international law, they certainly indicated an important turning point. Historians and jurists have therefore started to look at the history of international law to find causes and possible responses to current issues, or to read events in continuity with a new liberal teleology aimed at transforming the international legal and political order into a global order, where the classic sovereignty paradigm is outclassed by humanitarian progressivism2.

• 3 Kang Dan has recently criticized the fact that China is not properly discussed in the histories of (...)
• 4 The Chinese perspective emerges for instance in manuals of international law written by influentia (...)

2Despite its millennial civilization and its global rise, China and the histories of international law produced by Chinese jurists and historians seem marginal within this historiographical turn and within Western academic circles specifically. On the one hand this is not be surprising : as yet, in China there are no real schools or consolidated currents of thought that deal with international legal history3. On the other hand such a lack of reference to China is unjustified, given the presence of a ‘Chinese’ perspective on international law, and the role Chinese jurists have played in the development and universalization of international law, especially since the beginning of the twentieth century4.

• 5 M. Mutua and A. Anghie, « What Is TWAIL ? » Proceedings of the Annual Meeting American Society of (...)
• 6 TWAIL emerged originally at Harvard University in the 1990 s, and has gradually of the Hague Acade (...)
• 7 A. Anghie, Imperialism, Sovereignty, and the Making of International Law, Cambridge, Cambridge Uni (...)
• 8 L. Nuzzo, Origini di una Scienza, Diritto internazionale e colonialismo nel XIX secolo, Frankfurt (...)

3The precise objective of this article is to give a first and general response to these historiographical shortcomings. By presenting a critical summary and analysis of a selection of Chinese scholars and their approaches to the history of international law, it aims not only to provide readers with a general sense of some of the current Chinese debates on the subject, but also hopes to offer new insights for reflection in light of two other turns within the field in recent decades : the postcolonial turn and the global turn. Authors adopting a postcolonial perspective tend to challenge traditional scholarship that sees international law as a progressive science and an intrinsically European project. Taking into account colonial and imperial legacies, these writers have rethought the history of international law as something more fragmented and less scientific, pointing out the relationship between what is considered a science and the ideological apparatus underpinning it. The Third World Approaches to International Law (TWAIL) movement is an important example of this postcolonial turn5. TWAIL critiques neoliberal international law and its homologous progress narrative, aiming to expose what lies beyond the rhetoric of humanitarian cosmopolitanism while legitimizing alternative approaches and histories of international law, namely those of Third World countries. In particular, it emphasizes the experiences and the histories of colonized peoples, and the way in which Western countries used international law as an instrument of power and subjugation6. Antony Anghie, professor of law at the University of Utah and a key TWAIL representative, looks at international law’s relationship to imperialism from a historical perspective in his book Imperialism, Sovereignty and the Making of International Law (2004), pointing out its enduring imperial nature7. Gentle Civilizer of Nations (2000), by Martti Koskenniemi, a leading exponent of critical legal studies, constitutes one of the most influential contributions to the discipline of international legal history. Also espousing the postcolonial turn, the book shows how international law was born out of an impulse to civilize ; the reality of colonial and imperial interests betrayed not only nineteenth-century professionals’ enthusiasm for cosmopolitanism, but more broadly the liberal project that sought to promote the ideal of international law’s primacy over international politics. Along similar lines is Origini di una Scienza, Diritto internazionale e colonialismo nel XIX secolo (2012), an important contribution by legal historian Luigi Nuzzo that shows how the relationship between nineteenth-century international law and Western colonialism was articulated through time and space8.

• 9 B. Fassbender and A. Peters are respectively professor of international law at the University of S (...)
• 10 For global history as a critique to forms of container-based paradigms see S. Conrad, What is Glob (...)
• 11 A. B. Lorca, Mestizo International Law 1842–1933, Cambridge, Cambridge University Press, 2014.

4The 2012 Oxford Handbook of the History of International Law, edited by Bardo Fassbender and Anne Peters and destined to have a strong impact on the discipline, reflects this postcolonial sensitivity ; one of its preoccupations is overcoming Eurocentrism9. The handbook sets out to be an example of how to construct a global legal history by going beyond narratives that conceive of international law as a mere droit public européen. The global turn supported by the book is intended as an answer to the denunciations expressed by the postcolonial turn— not only broadening the scale of history by including voices and experiences that are often neglected, but also stressing connections across spaces and how these eventually contributed to international law’s development, going beyond traditional container-based paradigms such as that of the nation state10. Arnulf Becker Lorca’s recent work can be read within the same turn ; Mestizo International Law 1842–1933 (2014) aims to be a global intellectual history of international law, showing its hybrid origins and influence by non-Western or semi-peripheral states and lawyers11.

• 12 This is not to condemn the validity of concepts because of their genealogy. Despite their universa (...)
• 13 For instance, as observed by Nuzzo, the handbook perpetuates the dogmatic division in ‘epochs,’ as (...)

5Although the Oxford Handbook of the History of International Law seeks to expand the history both temporally and spatially by including non-European experiences, narrated in the form of ‘encounters,’ what the authors look for in non-Western experiences are the categories and dogmas of modern international law as originally born and developed in Europe. This risks maintaining Europe as the main historical subject, as the place where international law originates, while other experiences and histories, such as the Chinese, seem to be simple variations of a European grand narrative. This legitimizes a cognitive horizon that seems to have become universal over the course of the nineteenth century, and that remains deeply influenced by what Lorca defines as ‘the center’; this was and continues to be identified with the liberal West and some of its categories, such as today’s rule of law, democracy, human rights, and capitalism12. Thus the history of international law, no matter how global, appears at least in part condemned to take on a Eurocentric perspective, especially if— in a global space and time —the meeting between international law and other realities is taken for granted, as part of an inevitable process of integration of non-Western experiences within the progress of international law13.

• 14 Traditionally, an important study of the Chinese tribute system, although very much criticized and (...)
• 15 F. Masini, « The Formation of Modern Chinese Lexicon and Its Evolution Toward a National Language  (...)
• 16 H. Wheaton and W. A. P. Martin, Wan guo gong fa 万国公法, Taibei, Zhongguo guo ji fa xue hui, 1998.
• 17 For Chinese Maoist attitudes toward the history of international law see J. Delisle, « China’s App (...)

7China used to manage its foreign relations through the so-called tribute system14. Although the analytical framework provided by the tribute system, chaogong tixi 朝贡体系, is not fully satisfying in its description of the complex set of rules that regulated relations between the Middle Kingdom and neighboring countries, it is still helpful in highlighting how pre-modern China adopted a different normative system from the West. International law was introduced into China only during the First Opium War (1839–1842), when Lin Zexu (林則徐) (1785–1850), the Guangdong governor appointed by the Qing Government to deal with opium-trade-related controversies with Britain, asked imperial interpreter Yuan Dehui (袁德輝) to translate passages from European lawyer Emer de Vattel’s Le Droit des gens (1758). The translation, not yet systematic, was included in Wei Yuan’s influential Haiguo Tuzhi (Atlas and Description of the Countries beyond the Seas) published in 184715. It was only after the Second Opium War (1856–1860) that the first systematic translation of international law into Chinese, made by US protestant missionary William Alexander Parsons Martin, was introduced to China ; Chinese diplomats started to adopt its conceptual and linguistic framework as a reference.16 A government body in charge of more ‘modern’ foreign relations, the Zongli Yamen (总理衙门), was established in Beijing in 1861, complementing the Ministry of Rites (Libu 礼部) and the Lifan Yuan (理藩院), previously the sole body in charge of foreign relations. With the exception of those late-Qing-period literati who, following Martin’s suggestions, held that China already had a proto-international law at the end of the Zhou dynasty (475–249 BC), and those who focused on the unequal treaties and other colonial aspects of international legal practice in China, most Chinese scholars and jurists accepted Western accounts of the history of international law. This assumed the classical periodization that saw, for example, the 1648 Peace of Westphalia as the starting point of modern international law, and an overarching teleological narrative based on the notion of national sovereignty17.

• 18 M. Koskenniemi, Histories of International Law : Dealing with Eurocentrism, cit., p. 170–175.

8Today an increasing number of Chinese scholars question the Eurocentrism of these narratives. In current Chinese approaches to the history of international law, it is possible to identify at least four interrelated strategies used to assert Chinese subjectivity, relativizing the universality of an international law understood as a mere droit public européen. The first focuses on the hybridization of the meaning of some key concepts of international law once transplanted into China. This strategy opposes those viewing China as a passive object of Western domination ; it emphasizes China’s role as an agent influencing and complicating the meaning of transplanted legal concepts. The second strategy provincializes Europe and international legal history, seeing the latter as one possible normative framework that can accommodate a variety of uses. In particular, these authors show that international law was used by a particular group, the Western powers, to legitimize their colonial rule. If the precedence of European history is recognized, in the sense that modern international law first emerged in Europe, the Western account is not necessarily the most realistic or objective, as it reflects only one possible use and interpretation of international law18. A third strategy, linked to the second, reduces international law to a label used to describe the principles and laws that have governed the relations between states, regardless of the historical and geographical context in which they were used. These authors discuss the presence of an international law, guojifa 国际法, in the Warring States and the Spring and Autumn period of the Western Zhou Dynasty (770–256 BC). A fourth strategy, perhaps the most radical, attempts to emancipate China from being used as a source of secondary data to prove or disprove histories that see Western international law as necessary to a universal normative order. These authors focus instead on the normative order that preceded the introduction of international law in China, opposing the view that the Chinese tribute system was the polar opposite of a ‘proper’ or ‘modern’ legal and political culture.

• 19 L. H. Liu, Translingual Practice, Literature, National Culture and Translated Modernity : China, 1 (...)
• 20 C. Tang, China – Europe, cit.; Tang Qihua 唐启华, Bei feichu bu pingdeng tiaoyue zhebi de beiyang xiu (...)
• 21 Lam Hok-Chung 林學忠, Cong wanguo gongfa dao gongfa waijiao 从万国公法到公法外交 [From the Law of Nations to In (...)
• 22 Chen Li, « Law, Empire, and Historiography of Modern Sino-Western Relations : A Case Study of the (...)

9With regard to the first strategy, several authors look at how Chinese scholars appropriated the language and conceptual framework of international law and at the role played by Chinese lawyers and diplomats in its development from the late nineteenth century. The work of Rune Svarverud and Lydia Liu, for instance, in looking at the language of international law, emphasizes how translation has proven to be a far from neutral process ; it is an active appropriation in which the gradual legitimization of a new word and concept in a given host language takes place in an arena characterized by constant political and ideological struggles between conflicting interests. Thus a translated term acquires a hybrid meaning within the host language, rather than a perfect equivalence19. Here, Chinese jurists and internationalists, far from being passive recipients of European standards, appear to be active players in the forums in which international law was created, such as at the early Hague Conventions, often providing different understandings of European standards and contributing to a real internationalization and universalization of international law. Here I must mention the historian Tang Qihua, educated in Taiwan and the United Kingdom, and Deng Ye, a researcher at Beijing’s prestigious Chinese Academy of Social Sciences. Both have shed new light on the Republican period, which much of the historiography reduces to a chaotic period of division, by focusing on Chinese lawyers’ role in the formation of the League of Nations and later of the United Nations20. Tang Qihua and Deng Ye emphasize how Republican-period Chinese jurists gave a different interpretation of international law, promoting the interests of the nascent Republic of China. Historians Lin Xuechong, a researcher at the City University of Hong Kong, and Tian Tao, professor of Chinese history and culture at Tianjin Normal University, work along similar lines of enquiry. They have published work that deals with the introduction of international law at the end of the Qing Dynasty, highlighting the ways in which Chinese thinkers and reformers hybridized Western concepts. Tian Tao provides a history of key concepts of international law, for instance, noting not only how they deviated from Western formulations, but also how there were variations among Chinese authors.21 It is also worth noting those scholars opposed to the legal nihilism resulting from legal orientalism, which denied the existence of Chinese law prior to the transplantation of Western legal institutions. In this sense the ongoing impact of the work produced by Philip Huang, emeritus professor at the University of California, Los Angeles, and the International Society for Chinese Law and History, directed by Chen Li, professor at the University of Toronto, have greatly contributed to the development of Chinese legal history studies.22

• 23 Liu Wenming刘文明,19 shijimo ouzhou guojifa zhong de “wenming” biaozhun 19世纪末欧洲国际法中的“文明”标准 [The Civil (...)
• 24 Wang Jianlang, Unequal Treaties and China, Silkroad Press, 2015. See also Liu Limin 刘利民, Bu ping d (...)
• 25 Wang Tieya, « International Law in China : historical and contemporary perspectives », Recueil des (...)
• 26 P. C. W. Chan, China, State Sovereignty and International Legal Order, Leiden, Brill Nijhoff, 2014

10Within the second strategy, very much connected to the first, international law is treated as a framework that can be used to support different, if not opposing, claims. One example lies in the unequal treaties of the nineteenth and early-twentieth centuries. On the one hand, the Western powers legitimized those treaties, and the subsequent limitation of China’s sovereignty, through an interpretation of international law grounded on the ‘standard of civilization’. On the other hand, Chinese jurists simultaneously used international law as a platform to assert China’s new international subjectivity, emphasizing the principles of equality and sovereignty. In line with Gerrit Gong’s 1984 work The Standard of Civilization in International Society, Liu Wenming, professor of Global History at Beijing’s Capital Normal University, has criticized how Western powers’ projection of the standard of civilization onto international law created a hierarchy that placed European powers in a superior position to justify their imperialistic behavior in China.23 Similarly, in the recent book Unequal Treaties and China, CASS Institute of Modern History president Wang Jianlang emphasizes how Chinese use of international law differed from Western uses, with the unequal treaties affecting its reception in China and thus current Chinese behavior in international society24. Renowned Chinese jurist Wang Tieya also adopted this strategy in his essays for the Collected Courses of The Hague Academy of International Law : he explored China’s contributions to the development of international law by looking at Chinese usage, focusing in particular on the five principles of peaceful coexistence, which Wang considers the greatest Chinese contribution to the discipline. Wang is a major point of reference in Chinese legal scholarship, and has strongly influenced important Chinese jurists such as Xue Hanqin and Jia Bingbing25. Professor Li Chen’s Chinese Law in Imperial Eyes : Sovereignty, Justice, and Transcultural Politics and Phil C.W. Chan’s China, State Sovereignty and International Legal Order are two other volumes significant to the second strategy. The authors both look at sovereignty as a tool legitimately interpreted, negotiated, and contested by Chinese diplomats and jurists, and how this type of sovereignty interacted with the international legal order26.

• 27 See for example Hong Junpei 洪鈞培, Chun qiu guo ji gong fa春秋國際公法, Shanghai, Zhonghua shu ju, 1939 ; (...)
• 28 W. A. P. Martin, « Traces of International Law in Ancient China, » Chinese Recorder and Missionary (...)
• 29 Wang Tieya 王铁崖, Guojifa 国际法 [International Law], Beijing, Falü Chuban she, 1995 ; Wang Tieya, « In (...)
• 30 S. Neff, Justice Among Nations : A History of International Law, Cambridge MA, Harvard University (...)

11The third strategy, which can be considered an extension of the second, further relativized the meaning of international law by using it as a label to define the principles and laws governing relations between political entities27. The history of international law is detached from the history of Europe, and forced to become universal through projecting categories specific to European history, with some lack of historical accuracy, into different times and spaces. This is how we find international law in Ancient China. The above-mentioned US missionary W.A.P. Martin originally suggested this idea at the end of the Qing period28, but it was also supported by important jurists during the Republican period, such as Zhou Gengsheng and, more recently, Wang Tieya and Xue Hanqin, in their handbooks of international law29. This can be read as an attempt to validate China’s role in the history of a normative order that was foreign to it until quite recently, and that was initially imposed upon it. The cost of this strategy appears to be a wholesale rewriting of history, which ends by perpetuating legal orientalism. It is in fact an act of self-orientalism, in that it attempts to force the complex history of China and its pre-modern normative order into Western categories that are not themselves questioned, but instead validated and assumed to be necessary. Edinburgh University legal historian Stephen Neff, in his Justice among Nations : A History of International Law (2014), has embraced this approach. In attempting to write a global history of international law, he ascribes its origins to China’s Warring States period : because that was when there was a first systematic writing of international relations, that was when international law first appeared as an intellectual discipline. If China contributed this almost mythical origin of international law, then the rest of the history, at least until recently, has been driven by European powers30. Yet Neff, like other scholars who try in good faith to include the Chinese past within the history of international law, fall into the trap of forcing categories that are not, per se, necessarily universal into other histories. This is like trying to find the origins of the tribute system as an intellectual discipline in Europe.

• 31 See lecture given in Shanghai on January 30, 2013 by Xu Jilin (许纪霖), « Xin tianxia xhuyi – shijie (...)
• 32 Xu Jilin (许纪霖), « Guojia renting yu jia guo tianxia国家认同与家国天下 [National identity and National Tianx (...)
• 33 Xu Zhangrun (许章润）, « Lun ‘jiaguo tianxia’ – duiyu yi weida gudian hanyu xiuci yili neihan de wenhu (...)

12The fourth strategy gives credit to the Chinese normative system as it existed before the introduction of international law, showing that China, within the order of the tianxia and the tribute system, was not peripheral or semi-peripheral. Rather, it was the rest of the world that was peripheral to China. This strategy partly breaks away from the view that even the most critical analysis of modern international law from a global historical perspective cannot escape (parochial) European categories. It is the strategy advanced by scholars, such as international relations scholar Zhao Tingyang, who are recovering the tianxia system. Huadong Normal University professor and Shanghai-based intellectual and historian of modern China Xu Jilin, and Beijing Tsinghua University law professor Xu Zhangrun are also crucial here. By focusing on the nation and adding guojia 国家 or jiaguo家国to the term tianxia 天下, their work attempts to mitigate the imperial potential contained within Zhao’s project. In a lecture given in Shanghai in January 2013, Xu Jilin argued that the new rise of Chinese civilization might be the most important event in twenty-first-century world history. The biggest issue for him is whether China is ready to take up such a responsibility, especially as he feels that so far it has risen economically but not as a civilization. For him, China’s path is open to various possibilities, one being to follow the new Tatungism, xintianxia zhuyi 新天下主义, coordinating the universalism of modern civilization with the particularity of Chinese culture31. Xu has also discussed the double roots of modern China : on the one hand the idea of the nation state, guojia, on the other the universalist idea of tianxia, China as a world civilization, in which different ethnicities and religions are unified under one sovereign rule. For Xu, these double trajectories, dictated by national aspirations and by the universalistic tendency promoted by the tianxia, are necessarily intertwined, and their combination is likely to determine China’s future identity in what he defines as guojiatianxia 国家 天下32. Xu Zhangrun has proposed the ancient idea and rhetorical argument of jiaguotianxia家国天下 as an alternative to the latent imperialism contained in the new doctrines of Tatungism. He describes jiaguotianxia as a structure of civilization that works through the gradually enlarging encirclement of the most basic and fundamental social structure, the jia, family, with the guo, nation, and then with the tianxia, world. This structure provides a way to organize public space from the individual to the world, without falling into imperial structures33.

• 34 Zhiguo Gao and J. Bingbing, « The Nine-Dash Line in The South China Sea : History, Status, and Imp (...)

13In more practical terms, Chinese international jurists have attempted to recover the normative value of the tianxia worldview and the tribute system before the introduction of international law. This is the case, for instance, for Jia Bingbing, Tsinghua international law professor, and Gao Zhiguo, senior researcher and executive director of the China Institute of Marine Affairs ; in order to support China’s historical sovereign right in the South and East China Seas, they point to the value of its ancient relationship with neighboring countries pre-1935 and Chinese ‘sovereign’ activities in those waters. Such rights are grounded in the belief that the history of the tributary relationship between China and the tributary states is a valuable source of normativity, functionally equal to that established through international law34.

• 35 See for example J.R. Levinson, Confucian China and its Modern Fate : A Trilogy, Berkeley, Universi (...)
• 36 Wang Tao 王韜, Pu Fa Zhan jiyao 普法战纪輯要 : 四卷 [The Franco-Prussian War], Guanzhou:, Guanzhou chuban sh (...)
• 37 D. Sachsenmaier, Global Perspectives on Global History, Theories and Approaches in a Connected Wor (...)
• 38 See for instance Zhang Xudong 张旭东，« Quanqiuhua shidai de zhongguo wenhua fansi : women zenyang zuo (...)
• 39 H. E. Wushang 何戊双and M. A. Qun马骏，« Pipan Chen Tiqiang zai guojifa fangmian de fandong guandian 批判陈 (...)

15Since the Opium Wars (1839–1842, 1856–1860), which marked China’s entrance into the European family of nations and the beginning of its modern history, Chinese intellectuals have often found a way to articulate a modern Chinese identity outside of China’s borders, first in Western models and then in Soviet ideology. In Chinese histories written in the twentieth century, modernity often seems to start with the Western Enlightenment. Chinese authors idealize this period as the golden age of world civilization. China’s enlightenment is seen as beginning only after the turning point of the nationalist, anti-traditionalist May Fourth Movement of 1919, which allowed China to move away from its traditional culture and become a modern sovereign nation35. Or, for those embracing Soviet ideology, a new model for modernization was found in the Soviet Union. Unsurprisingly, the first histories of international law in China were diplomatic histories of Europe, such as The Franco-Prussian War and A Concise History of France by late-Qing philosopher Wang Tao (王韜, 1828–1897)36. Unlike most Western historiography, in which the non-Western world often plays a marginal role, in China modern history has been given a narrative that places great emphasis on other regions of the world and their achievements in the modernization process, deemed a model for China itself.37 Today, whether their answer to crisis is a return to imperial internationalism, Third World approaches, or Asian-centric studies, Chinese historians and intellectuals are rediscovering their own tradition, questioning the relationship between the sense of Chineseness and modernity38. International law has often been perceived in China as a Western product. Apart from during the first decades of the PRC— when, in the name of proletarian internationalism, it was dismissed as a bourgeois —international law has been often tied to an imposed non-autochthonous modernity39. In order to give a Chinese perspective to the history of international law, it is first necessary to question the category of modernity, so as to create narratives in which modernization does not only correspond to Westernization, but in which Chinese history may deviate from Western expectations and where international law’s development can be open to different interpretations and histories.

• 40 D. Sachsenmaier, Global Perspectives on Global History, cit., p. 198.
• 41 Xu Jilin describes this phenomenon as the development of historicism starting in the 1990 s. Xu Ji (...)
• 42 D. Sachsenmaier, Global Perspectives on Global History, cit., p. 204. Taiwan-based historian Sun G (...)
• 43 Xu Jilin, « Pushi wenming, haishi zhongguo jiazhi ? », cit.

16Over the past two decades, tied in part to China’s growing global influence, a shift can be seen in the historical approach of many Chinese scholars40. Applause for the West as a global model has declined, while the Western Enlightenment has been historicized and Western values relativized, no longer conceived as universal or as the ultimate goal of an inevitable modernization process.41 Debates on China’s future and its influence on a new world order have been accompanied by the rediscovery of Chinese tradition, as the ‘national studies fever’ (guoxuere 国学 热) of the 1990 s proves. These studies, focused on national culture and tradition, were driven by questions such as what it means to be Chinese today and how to connect the past with the path to future development. The secular trend that led Chinese scholars to look at non-native models has been challenged by the increasingly widespread idea that multiple modernities exist, and should all be included in a new global history42. If twentieth-century Chinese versions of global history were grounded in Eurocentric assumptions about modernity’s epicenter and saw China as a stagnant civilization, today many Chinese historians do not accept the view that Europe created modernity and global history. This process has gone hand in hand with the emergence of historicism, especially in circles of the New Left. Historicism, according to which there is no rational essence that can be made universal but only particular histories read through the lens of nation states, does indeed support the way in which Chinese ‘values,’ ‘ways,’ and ‘characteristics’ are being affirmed today43.

• 44 See also Wang Zonglai and Hu Bin, « China’s Reform and Opening-up and International Law », Chinese (...)
• 45 D. Sachsenmaier, Global Perspectives on Global History, cit., p. 204, 228.
• 46 Yang Zewei杨泽伟, Zhuquan lun : Guojifa shang xhuquan wenti ji qi fazhan queshi yanjiu主权论： 国际法上主权问题及其(...)

17It follows that modernity— at the normative level too —is increasingly no longer understood as Westernization. Europe is no longer the only creator of international law, and modernity has been de-Europeanized. Accordingly, international law and its history should be able to include the Chinese experience and perspective.44 As mentioned above, some Chinese legal historians have argued that since the late Qing period China has contributed to the development of the history of international law, revealing its colonial side either by hybridizing the meaning of key concepts of international law and contributing to its development during the First and Second World Wars, or by using the framework provided by international law for different purposes, as in the case of the unequal treaties. As modernization becomes a global phenomenon separated from Western models, international law is placed in a global history that does not lead necessarily to a Westernization of values, but rather to a reality made up of multiple modernities and, as such, open to a plurality of values.45 For this reason, some Chinese authors consider legitimate what is seen to be a Chinese ‘deviation’ from human rights, the rule of law, liberal models of development, and a certain vision of sovereignty. In fact, this new vision of multiple modernities aspires precisely to avoid China being seen as an exception or deviation from a unitary teleology. These authors regard its history and normative development as ‘normal’ in a multipolar world within which different civilizations coexist harmoniously.46

• 47 D. Sachsenmaier, Global Perspectives on Global History, cit., p. 218–219. See also Cai Tuo, ed., C (...)
• 48 See also Wang Tieya, International Law in China, cit ; Wang Tieya, Zhongguo yu guojifa-lishi yu da (...)
• 49 For Wang Tieya, and for later Chinese international jurists, the five principles of peaceful coexi (...)

19Many Chinese accounts of the history of international law, but also global history, remain strongly state-centric. For example, Professor Yu Pei, former director of the CASS Institute for Global History, deals with global history by defending state-centric narrations instead of focusing on connectedness between nations, and the same is true in the recent campaign of the National Commission for Education, where it was declared that history should serve the nation.47 Important Chinese professors of international law such as Wang Tieya, Xue Hanqin, and Jia Bingbing are attached to a national or patriotic perspective48. For these authors, the history of international law in China is linked to its becoming a sovereign state, capable of fully asserting its new international subjectivity and abolishing unequal treaties. In this great narrative, China, from being the victim, is a shaper of international law ; from being an outsider in the family of nations and colonized by others, it becomes a full subject not only contributing to the creation of international law, but also safeguarding the supreme value of sovereignty, one of the five principles of peaceful coexistence that officially govern its foreign relations49. One reason justifying this state-centric historiography is the rejection of what many Chinese authors consider a new Western imperialism, which, in promoting global individual rights in the name of a common humanity, often manipulates international law and its history in its own favor.

• 50 Yang Zewei杨泽伟, Hongguan guojifa shi 宏观国际法史 [A Macro-history of International Law], Wuhan, Wu han d (...)

20In Chinese scholarship, a recent contribution to the history of international law comes from Yang Zewei, professor of international law at the University of Wuhan, namely in his A Macro-history of International Law (2001) and A Study on the History of International Law (2011)50. Contrary to postmodernist trends, Yang, in continuity with Marxist historiography, seeks a metanarrative that puts international law’s development alongside the evolution of international society, and supports a progressive history of international law by dividing it into four periods : the origins, which run from ancient times to the Peace of Westphalia ; the modern period, which begins with the Peace of Westphalia and ends in 1914 ; the late modern era from 1914 to 1945 ; and the contemporary period, from 1945 to today. To these periods he adds a separate time and space of international law, finding elements of it in ancient Chinese history. Accordingly, after the Warring States Period, characterized by the presence of sovereign states and international law, China started to decline under dynastic imperial rule, until its resurgence as a sovereign nation in the nineteenth century, thanks to a sort of re-appropriation of modern international law. As already discussed, this reading of history does present a series of problems, imposing categories foreign to Chinese tradition.

• 51 In the West, at least two aims motivated a renewed interest in the history of international law : (...)
• 52 Yang Zewei杨泽伟，Zhuquan lun – guojifa shang de zhuquan wenti ji qi fazhan qushi yanjiu主权论－国际法上的主权问题及 (...)
• 53 See D. Armitage, « The International Turn in Intellectual History », Rethinking Modern European In (...)
• 54 See for instance Yang Zewei, « Western International Law and Chinese Confucianism in the 19^th cent (...)

21Yang’s history tries to be universal and global, ultimately promoting a vision of a multipolar world in which China will play a leading role. These efforts do not seem to be purely historical, since his stated aim is to shed light on the trajectory of the future in order to influence it. While the neoliberal trend considers state sovereignty outdated, Chinese authors’ histories of international law tend to reaffirm it.51 It is thus not surprising that Yang dedicated an entire book to the principle52. By using the classic categories of the traditional historiography of international law53, he promotes a sovereign-centered teleology that opposes those who see the state as an impediment to the development of the market and those who consider Chinese bureaucracy and obsession with sovereignty as obstacles to moral and humanitarian progress54. The history narrated by Yang remains anchored to the Peace of Westphalia, as the beginning of modern international society and international law.

• 55 A. Carlson, « Moving Beyond Sovereignty ? A brief consideration of recent changes in China's appro (...)
• 56 J. K. Fairbank, The Chinese World Order : Traditional China’s Foreign Relations, Cambridge MA, Har (...)

22China’s identity crisis over the past two decades has led many Chinese authors to rethink and rediscover their own cultural traditions, which remain marked by the Cultural Revolution and Maoism. Faced with China’s rapid material growth, many thinkers have begun to talk about a ‘Chinese time’ zhongguo shike 中国时刻, or ‘the rise of China,’ zhongguo de xingqi 中国的兴起, identifying its starting point in the year 2008. From this date, China’s economic growth should be paired with its increased global, political, and normative influence. Although not the most popular approach, but of great interest for potential developments in Chinese foreign policy and attitudes toward international law, is the rediscovery of the idea of tianxia55. The system of tianxia— which literally means ‘all under heaven’ and metaphorically indicates the world at large —is a worldview that supported China’s centrality in the universe and that determined its foreign relations in the Imperial era, starting with the Zhou dynasty. Tianxia defined imperial sovereignty on the grounds of a cosmology of correspondences between the earthly and heavenly orders. The Chinese emperor, or Son of Heaven (Tianzi 天子), thanks to the mandate of heaven (tianming 天命), was the emperor not only of China but of the whole world, because he was able to restore the natural order of things. His centrality also determined the complex tribute system of rituals that regulated the relations of China, center of the world and top of the hierarchy, with surrounding countries, which, considered peripheral and less civilized, had to pay regular tributes as a form of recognition of the universal imperium of the Chinese emperor56.

• 57 Zhao Tingyang 赵汀阳, Tianxia tixi : shijie zhidu zhexue daolun 天下体系 : 世界制度哲学导论 ［The world system : A (...)
• 58 Zhao Tingyang, Tianxia tixi, cit., p. 4, 11.
• 59 Zhao Tingyang, Tianxia tixi, cit., p. 13.
• 60 W. A. Callahan, « Chinese Vision of World Order », International Studies Review, 10, 2008, p. 749– (...)
• 61 Wang Mingming, « All Under Heaven (tianxia), Cosmological perspectives and political ontologies in (...)

23In the rediscovery of tianxia, of particular interest is the abovementioned philosopher Zhao Tingyang, a researcher at the CASS. His 2005 work The System of Tianxia has played a substantial role in disseminating and popularizing the idea of tianxia as a Chinese contribution to a new world order.57 Zhao uses this traditional notion to promote a new way of thinking about the world and global problems. His political theory departs from the limited Westphalian approach in that its starting point is no longer the sovereign state but the world, shijie 世界58. In his view, the problem of difference is resolved through the transformation (hua 化) of the multitude of sovereign states into a united world, that conceives of itself as a unit59. Thanks to the example of its skillful Confucian-Leninist leadership, China is implied to be the country capable of leading this transformation by moral example. Zhao’s work has been criticized as lacking textual and historical accuracy, but also, as international relations professor of at the London School of Economics William Callahan has noted, because the rhetoric of tianxia is fundamentally based on an absolute distinction between a moral China and an immoral West, which could potentially justify an imperial projection of China60. Here it is interesting to note that the Chinese historiographical narratives of the twentieth century were characterized by the dichotomy between the world, shijie, and China, 中国 zhongguo. The former was the world outside of China, toward which the latter aspired in its desire for modernization ; China was seen as a backward and closed country which had to quickly move forward with modernization and join the world (zouxiang shijie 走向 世界)61. The shijie mentioned by Zhao and the new wave of tianxism (xin tianxia zhuyi 新 天下 主义) departs from such conceptions. The world is no longer just outside and does not correspond to the West. On the contrary, it is also Chinese, and the biggest threat is of becoming too Chinese.

• 62 Wang Gungwu, « Wang Gungwu on Tianxia », The China Story, 2013.
• 63 Y -K. Wang, Harmony and War : Confucian Culture and Chinese Power Politics, New York, Columbia Uni (...)

25Zhao Tingyang aims to write a history of the world normative order from a Chinese perspective, rediscovering in its cultural roots a tradition that provincializes European international law. Ultimately this would lead to the replacement of the Westphalian order with an order that, beyond the ideal of tianxia datong 天下大同，harmonious world, may conceal China’s imperial aspirations. Although there are differences between tianxia and empire— translated into Chinese from the Japanese language at the end of the Qing Dynasty as diguo 帝国 —they are closely related and complementary. Historian Wang Gungwu stresses that imperial rule was characterized by conquest and control over territory, often through use of force, while tianxia was an idea linked to the art of government and to the enlightened philosophy of Confucius. It is promoted as the philosophy of a universal moral value and as a standard of civilization through which to decide who is part of the civilization contained within the Pax Sinica and who is not.62 However, tianxia was historically used to justify the expansion of the Chinese empire, often through use of force, and its main characteristic was unfixed boundaries—boundaries in a constant process of expansion. This was precisely the vision of tianxia, which also meant the world, the civilized world identified with China ; the art of government promoted by tianxia was necessary to give a concrete structure to the empire.63 Whether Chinese authors will tie their vision of tianxia to respect for the principles of equality and sovereignty, or whether Zhao’s vision corresponds to a return to empire, remains to be seen. Either way, it acts as a counter-teleology to both those who promote sovereignty as the telos of history and the neoliberal post-sovereignty theories, which certainly do not envision a return to empire.

• 64 Wang Hui, The End of the Revolution : China and the Limits of Modernity, London, Verso, 2011.
• 65 Wang Hui, China from Empire to Nation State, tr. Michael Gibbs Hill, Cambridge MA, Harvard Univers (...)
• 66 Wang Hui, The End of Revolution : China and the Limits of Modernity, London, Verso, 2011, p. 132.

26A recent contribution to Chinese historiography comes from Wang Hui, a representative of the New Left and professor in Chinese history and literature at Qinghua University. He is an influential critic of neoliberalism and of the consequences major economic reforms have produced in China. The End of the Revolution, a collection of articles published between 1994 and 2007 and translated into English, provides the reader with a summary of his thought about modernity, nationalism, and democracy.64 Of particular interest is the recent translation into English of his China, from Empire to Nation-state, part of his masterpiece The Rise of Modern Chinese Thought.65 In it, Wang looks at the history of China from the Song Dynasty (960–1279) to the present day, questioning the meaning of many of the assumptions and categories of modernity. He opposes the idea of a universal path to modernity that originated exclusively in the West, and the related belief that Chinese culture is an obstacle to modernization ; he sees the collapse of the Qing and its cultural patterns at the beginning of the twentieth century as essential to Chinese modernization. He shows that reading Chinese history through Western categories fails to properly account for it. For instance, important Chinese traditional categories that continue to affect China’s version of modernity, including in its normative aspects, such as tianli 天理, or heavenly principles, are completely neglected in Western historiography. The use of the conceptual dichotomy of state versus empire, for Wang, limits understandings of modern China. Chinese history can only be misunderstood if it is looked at simply as a transformation of the Middle Kingdom from empire to sovereign state. He concludes by saying that it is impossible to answer the question of whether China was and is an empire or a nation state66.

• 67 Wang Hui汪晖, Xian dai Zhongguo si xiang de xing qi现代中国思想的兴起, Beijing, Sheng huo, du shu, xin zhi sa (...)
• 68 Wang Hui, Xian dai Zhongguo si xiang de xing qi, op. cit. This is also discussed by D. Sachsenmaie (...)
• 69 For a critical response to Wang Hui see Zhang Yongle, « The Future of the Past », New Left Review, (...)

27In The Rise of Modern Chinese Thought (Xian dai Zhongguo si xiang de xing qi现代中国思想的兴起), Wang deconstructs the way the West has conceptualized Asia. Challenging the universality of the concept of the nation state as a criterion to read universal history, he redeems traditional Chinese culture and its categories as ‘proto-modern.’ He suggests that modern elements, such as state centralization, economic domination, and aspects of nationalism, can be found as early as the Song Dynasty. In this sense, the classical dichotomy of tradition versus modernity does not hold because they are interdependent. Wang also seeks to rehabilitate elements of the Chinese tradition overlooked by current historical narratives67. His is not an effort to re-traditionalize China, but to reconnect certain ‘proto-modern’ traditional Chinese elements with modernity68. This approach arguably turns out to be the Achilles’ heel of Wang’s theory, as the deconstructed modernity, made up of moments of Chinese proto-modernity and modern alternatives, results in categorizations that become vague to the point of meaningless69.

• 70 In Wang Hui, The Politics of Imagining Asia, Cambridge MA, Harvard University Press, 2011.

28In an essay on Tibet (The Tibetan Issue East and West : Orientalism, regional ethnic autonomy, and the politics of dignity), Wang offers his perspective on international law in relation to his ideas of modernity and history. Without being distorted, the history of international law, as well as modern history, should give an account of alternative models that draw their inspiration from the past. According to Wang, Tibetan claims to independence are the result of orientalism and Western political strategies aimed at creating tensions within China. His view is that the Chinese claim over Tibet is not completely illegitimate. It is grounded in the fact that China’s current sovereignty was built on a system of pre-existing forms of political and religious orders, like that of tribute, which cannot by themselves be condemned as backward or anti-modern. Indeed, they must be reconsidered not only to reconstruct international legal history in China, but also to better understand China’s current vision of sovereignty70.

• 71 In Wang Hui, The Politics of Imagining Asia, cit.

29The same principle applies to the island of Okinawa. To Wang, Okinawa plays a key role in the history of international relations, being a problem not only for Asia, but also for the United States, reflecting much deeper historical and geopolitical dynamics. According to Chinese imperial reports, Okinawa, known as the Ryukyu Kingdom, was under China’s control and could not be classified within the framework of international law— at least not until the Japanese occupation of 1876. In Wang’s view, the change of rule and government in Ryukyu cannot be described only in terms of relations between states, as they relate to the transformation of the basic principles governing relations between political entities and communities in the East Asian region. To Wang, these changes are not only the result of the alteration of the hegemonic positions of China and Japan, but also of a transformation of the normative order in Asia. Japan’s domination could not have taken place within the tribute system ; it had to adopt the new nationalist-imperialist order legitimized under international law. If we do not understand the scope of this rupture and transformation, he argues, we cannot understand the modern history of Okinawa, the Sino-Japanese War of 1894, the loss of Taiwan, the colonization of the Korean Peninsula, the foundation of the Manchukuo, and the political-military logic of the Greater East Asia Co-Prosperity Sphere imagined by Japan. If the new regulatory framework adopted international law, we must still refer to the vision of the world that preceded it in order to understand it. Although the tribute system collapsed and the Ryukyu Kingdom no longer exists, its geo-historical position continues to be a historical problem for Asia. Given the fact that sovereign relations do not exist in isolation and cannot be unilaterally put into effect by a single national entity, the ambiguity around the issue of Okinawa is inevitable. To make sense of this problem, it is necessary to embrace the perspective of international legal history and China’s internationalization, but also the history of the normative order that preceded it and influences its reception71.

• 72 Wang mentions this when discussing Lydia Liu’s The Clash of Empires. Vedi Wang Hui 汪晖, « Diguo de (...)

30Wang believes these different normative orders can also be understood through semiotics. The power struggles in Asia at the end of the Qing Dynasty and in the Republican period were not only struggles between countries but between competing systems of symbols and other international standards. The contrast between the tribute system and international law can also be seen at the symbolic level. This clash took place in Tibet, for example, where Britain, in order to open the area up to trade and exploitation, signed a series of treaties with Nepal, Bhutan, and Sikkim. This led to a re-rationalization of relations between Great Britain and Tibet through the new symbolic system of international law72.

• 73 D. Chakrabarti, « Postcoloniality and the Artifice of History : Who Speaks for “Indian” Pasts ? », (...)

32The histories and strategies used by some of the authors presented here are only part of a thick and complex story, which cannot be identified through one single perspective of a unitary China. What do all these debates tell us about China, a global history of international law, and Eurocentrism ? Every culture produces a particular perspective on how its ‘world’ is normatively or legally regulated. At the same time, it departs from its own unique perspective when narrating historical events. Existing histories of international law are often charged with Eurocentrism ; an equivalent process may happen if the Chinese perspective is taken to extremes. Histories of international law produced by Chinese scholars could eventually be seen as Sinocentric, as the issue of subalternity is always around the corner. The subalternity discussed by one of the fathers of subaltern studies, Dipesh Chakrabarti, when he showed how Indian, Kenyan, and Chinese histories ‘tend to become variations on a master narrative that could be called the history of Europe,’ could be reversed, and a history of international law from a Chinese perspective could well become a variation of another, competing master narrative called ‘the history of China’73. A global perspective would then appear to be the solution, but only if it does not assume the dogmatic belief rooted in the idea of ​identifiable historical truth. Global history inevitably consists of multiple perspectives because there is always, no matter how global our aspirations, a particular point of view from which we project an image of the world. In other words, a global history cannot aspire to impartial totality. It must be the collection of a set of diverse institutions and perspectives.

• 74 An author who has recently adopted this approach to the study of China and the introduction of int (...)

33There is another issue concerning a global history of international law. International law has long aspired to become universal, or global, but has become so only recently, in the course of the twentieth century, through contributions from and confrontations with non-Western countries. In this sense an interesting approach that comes from sociolegal research is one that looks at the so-called global-local interactions of normative orders, pointing out how global normative rules influence local legal systems, and how these latter, through processes of reinterpretation and adaptation, inform the development of global norms in a dialectical way74. However, creating a global history of international law today risks projecting into its past a universality or ‘globality’ that was not actually there, and reading other experiences as a function of international law and its development. If the present of international law is global, the past was not, and the future is not necessarily global either. For this reason, a global history of international law can neither claim to treat everything in an exhaustive way, nor can it aspire to futurability. There is no law of globalization in international law, but its current globalization can be read in its history. Although we can talk about a non-negotiable core of modernity, reflected for instance in certain values promoted by international law, we cannot take it for granted, and reflecting on China in relation to this can be both a stimulus and a challenge. In this sense, it would be interesting not only to write a global history of the so-called tribute system, which, unlike international law, died out in the globalization process. Yet perhaps the only way to really rid ourselves of Eurocentrism would be to write a global history of normative orders rather than of international law. This would frame international law as a normative order in a broader spatial and temporal perspective.