At the end of the nineteenth century, China found itself torn between its imperial past and its nation-state future. By the time it became a Republic in 1911, China had to redefine its territory in new national sovereign terms. Until then its territory had been inscribed in more malleable frontiers and boundaries within the normative framework of the so-called ‘tribute system’. The article shows how, applying the new legal techniques of empire learned from the West, the Chinese central government, wherever possible, attempted to expand its new sovereign domain in territories like Tibet, Xinjiang, and Mongolia, where, according to international law, all the prerequisites existed for national self-determination and independence. In the context of opposing British and Tibetan claims, the Chinese appropriation of international law in the Republican period (1911–1949) helped China not only to assert itself in the international domain as a sovereign state, defending itself against Western imperialism, but also to pursue its own fictional imperial claims over Tibet, without which the Communists’ ‘liberation’ of Tibet would have not been possible. The paper highlights the interplay of imperial techniques based on international law, the relativity of this legal language, and how the strategies of empire are not only a prerogative of the West, but can be quickly adopted by those who have been subjected to them, resulting in a vicious circle.
1 International law was certainly more like an organizing myth, a principle rather than reality. See Osiander, A., ‘Sovereignty, International Relations, and the Westphalian Myth’, (2001) 55 International Organization 251, at 284; J. Burbank and F. Cooper, Empires in World History: Power and the Politics of Difference (2010); M. Hardt and A. Negri, Empire (2001). With regard to the international law myth and China see Chen, L., ‘Universalism and Equal Sovereignty as Contested Myths of International Law in the Sino-Western Encounter’, (2011) 131 Journal of the History of International Law 75 .
2 Harrell, S., ‘Civilizing Projects and the Reaction to Them’, in Harrell, S. (ed.), Cultural Encounters on China's Ethnic Frontiers (1994), 3 at 18 . 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 the relations between the Middle Kingdom and its neighbouring countries, it is still helpful in highlighting how pre-modern China adopted a different normative system from the West. For more recent re-interpretations of the tribute system see D.C. Kang, East Asia Before the West: Five Centuries of Trade and Tribute (2010); D.C. Wright, From War to Diplomatic Parity in Eleventh-century China, Sung's Foreign Relations with Kitan Liao (2005); S. Suzuki, Civilization and Empire: China and Japan's encounter with European international society (2009); T. Hamashita, China, East Asia and the global economy: Regional and historical perspectives (2008).
3 A. Dirlik, ‘Born in Translation: “China” in the Making of “Zhongguo”’, Boundary 2, 29 July 2015, available at www.boundary2.org/2015/07/born-in-translation-china-in-the-making-of-zhongguo/ (accessed 2 July 2017).
4 Recent scholarship on the global history of international law seeks to be an answer to Eurocentrism. See Fassbender, B. and Peters, A., ‘Introduction: Toward a Global History of International Law’, in Fassbender, B., Peters, A. and Högger, D. (eds.), The Oxford Handbook of the History of International Law (2012), at 1; Duve, T., ‘European Legal History - Global Perspectives’, (2013) 6 Max Planck Institute for European History Research Paper Series . Some of the anti-eurocentrism efforts end up being a-historical. Recently for instance, the Cambridge legal historian Stephen Neff, in his attempts to write a global history of international law, ascribed the origin of international law to China and the Warring States period. According to Neff, it is in this period that the first systematic writing of international relations appeared, marking the beginnings of international law as an intellectual discipline. S. Neff, Justice among Nations: A History of International Law (2014), 21.
5 E. Said, Orientalism (1979); E. Said, Culture and Imperialism (1992); Guha, R. and Spival, G.C. (eds.), Selected Subaltern Studies (1988); G. Prakash, After Colonialism: Imperial Histories and Postcolonial Displacements (1995); D. Chakrabarty, Provincializing Europe: Postcolonial Thought and Historical Difference (2000); H.K. Bhabha, Nation and Narration (1990).
6 See Mahmud, T., ‘Geography and International Law: Towards a Postcolonial Mapping’, (2007) 5 Santa Clara Journal of International Law 525, at 527.
7 Miller, M.C., ‘Re-collecting Empire: “Victimhood” and the 1962 Sino-Indian War’, (2009) 5 Asian Security 216 .
8 T. Li, The Historical Status of Tibet (1956), 3–12.
9 For instance, for Tsepon Wangchuk Deden Shakabpa, Tibet was independent. See T.W.D. Shakabpa and D. Maher, One hundred thousand moons (2009). On the contrary, for Li Tiezheng, Tibet was a vassal of China, supra note 8.
10 Such relationship should be understood not only culturally or religiously, but also militarily, to serve the Yuan strategy. See W. Smith, Tibetan Nation: A history of Tibetan Nationalism and Sino-Tibetan Relations (1998), 108–13.
11 The scholar Elliott Sperling in particular notices how there was a political submission of Tibet to China. Sperling, E., ‘The Tibet-China Conflict: History and Polemics’, (2004) 7 Policy Studies xi, at 30 ; T. Wylie, Lama Tribute in the Ming Dynasty (1980).
12 Fairbank, J.K. and Têng, S., ‘On the Ch'ing Tributary System’, (1941) 6 Harvard Journal of Asiatic Studies 135, at 193; Zhao Yuntian dian jiao, Qianlong chao nei fu chao ben ‘Li fan yuan ze li’ (2006).
13 H. Lin, Tibet and Nationalist China's Frontiers, Intrigues and Ethnopolitics, 1928-49 (2006).
14 J. Kolmaš, The Ambans and Asssistant Ambans of Tibet (1994).
15 The notion of race was introduced in China at the end of the nineteenth century, with the popularization of Johann Friedrich Blumenbach's Five Race Theory. The notion of Manchu, Han, Mongolian, Hui, Tibetan races, were conceptual constructions that helped to create a narrative for the national unification of China at the beginning of the twentieth century. The First Republic was precisely envisioned as the unification of the Chinese five races: Han, Manchu, Mongols, Hui and Tibetan. The original flag was five-coloured, and represented the five races of China that had to unify to create one country. What it meant to be Chinese was a question that is still hard to answer today. Usually, however, Chinese are identified with Han nationality. But this was much more blurred back then, when the leading dynasties were not Chinese, like in the cases of the rule of Mongols and the Manchu. See Brindley, E., ‘Barbarians or Not? Ethnicity and Changing Conceptions of the Ancient Yue (Viet) Peoples, ca. 400–50 bc’, (2003) 16 (1) Asia Major 1, at 29; F. Dikotter, The Discourse of Race in Modern China (1992); see Sun, J., ‘Blumenbach in East Asia: The Dissemination of the “Five-Race theory” in East Asia and a Textual Comparison’, 51 (2012) Oriens-Extremus 107 .
16 M. Mosca, From Frontier Policy to Foreign Policy, The Question of India and the Transformation of Geopolitics in Qing China (2013), Chapters 6–7; G. Tuttle, Tibetan Buddhist in the making of Modern China (2005), at 29, 43.
17 Huang, D., ‘Qingchao xizang “qinding cang nei shanhou zhangcheng” lifa yanjiu’, (2012) 11 Zuguo jiansheban ; Liao, Z., Li, Y. and Li, P.. ‘Qinding can nei shanhou zhangcheng ershijiu tiao banben kaolüe’, (2004) 2 Zhongguo zang xue .
18 Z. Liao and Y. Li, Qin ding Zang nei shan hou zhang cheng er shi jiu tiao’ ban ben kao lüe (2006).
19 H. Van de Ven, Breaking with the Past: The Maritime Customs Service and the Global Origins of Modernity in China (2014), 119.
20 Scholars have different opinions about when China became a sovereign nation. See for instance I.C.Y. Hsu, China's Entrance into the Family of Nations. The Diplomatic Phase 1858-1880 (1960); Karl, R., ‘China in the World at the Beginning of the Twentieth Century’, (1998) 103 The American Historical Review 1096, at 1099; G. Xu, The Age of innocence: The First World War and China's quest for national identity (1999).
21 P. Hopkirk, Trespassers on the roof of the World: The Race to Lhasa (1983), at Chapters 5–8. See how George Bogle and Thomas Manning referred to Tibet: C.R. Markham, Narratives of the mission of George Bogle to Tibet: and of the journey of Thomas Manning to Lhasa (1879), at 130, 273, 278.
22 In this context, a quite remarkable memorandum was sent to the Emperor by Ting Paochen, the governor of Sichuan, a key region for the contact between the Chinese central Government and Tibet, in the period between 1876 and 1885, stating that the Tibetan administration had been relaxed since the last years of the Xuantong Reign (1821–1850) and that the Tibetan civil service had become a separate body, no longer subordinate to imperial institutions. See Li, supra note 8, at 63.
23 Wagner, R.G., ‘China Asleep and Awakening. A Study in Conceptualizing Asymmetry and Coping with It’, (2011) 1 Transcultural Studies 4 .
24 This was a significant moment: in the past the superiority of China was shown in the expectation that foreign ministers coming to China would learn Chinese, the Chinese ruling elite was not interested in learning foreign languages. See F. Casalin, Linguistic Exchanges between Europe, China and Japan (2008), 153; J.K. Fairbank and S. Têng, China's Response to the West: A Documentary Survey (1979).
25 The Tongzhi Restoration constituted the ‘last great effort to reassert the validity of Chinese traditional institutions’, and it was the indirect result of the Self-Strengthening Movement formed by those Confucian intellectuals and officials like Feng Guifen 馮桂芬 (1809–1874) Prince Gong 恭亲王 (1833–1898), Zeng Guofang 曾國藩 (1811–1872), Li Hongzhang 李鴻章 (1823–1901) and Zuo Zongtang 左宗棠 (1812–1885) who, while aware of and intrigued by Western science, were still dedicated to the restoration of the imperial universal authority, understood as the sole form of coherence and order. M.C. Wright, The last stand of Chinese conservatism: The Tung-chih restoration, 1862-1874 (1966), ix; Chu, S.C. and Liu, K. (eds.), Li Hung-chang and China's Early Modernisation (1994), 5–6 .
26 R. Svarverud, International Law as World Order in Late Imperial China: Translation, Reception and Discourse, 1847-1911 (2007); H. Wheaton and W.A.P. Martin, Wan guo gong fa (1998).
27 For some new perspectives on the introduction of international law in China see L. Chen, Chinese Law in Imperial Eyes: Sovereignty, Justice and Transcultural Politics (2016); S. Kawashima, ‘China’, in Fassbender, Peters and Högger supra note 4; C. Tang, ‘China – Europe’, ibid.
28 L. Nuzzo, Origini di una Scienza. Diritto internazionale e colonialismo nel XIX secolo (2012).
30 D. Wang, China's Unequal Treaties, Narrating National History (2008), 25.
31 Anand, D., ‘Strategic Hypocrisy: The British Imperial Scripting of Tibet's Geopolitical Identity’, (2009) 68 The Journal of Asian Studies 227 .
32 See, for instance, the compilation of historical data on Sino-Tibetan relations: Zhongguo di er lishi dang'an guan, zhongguo zang xue yanjiu zhongxin bian. Yuan yilai xi cang defang yu zhongyang zhengfu guanxi dang'an shiliao huibian (1995); Xizang defang lishi ziliao xuanji (1963).
33 For instance, in the Viceroy's citation of the Waiwubu communication to the Ambans in his communication to the London Office, he quotes: ‘China is a dependency of China . . . Great Britain should not conclude a Treaty direct with Tibet, as by that China loses suzerainty (zhuguo)’. But here clearly zhuguo has been intentionally translated as suzerainty, zongzhuguo, by the author of the telegram. FO 17/1751, 13 September 1904.
34 Agreement between the Ministers Plenipotentiary of the Governments of Great Britain and China, in W.F. Mayers, Treaties between the Empire of China and Foreign Powers, together with Regulations for the conduct of foreign trade, conventions, agreements, regulations, etc., (1906), 44, at 48.
35 Convention Between Great Britain and China Relating to Sikkim and Thibet. Signed at Calcutta, 17 March 1890, in E. Hertslet, Treaties, etc., between Great Britain and China; and between China and Foreign Powers; and Orders in Council, Rules, Regulations, Acts of Parliament, Decrees, and Notifications Affecting British Interest in China (1896), 91–7.
36 See Norbu, D., ‘The Europeanization of Sino-Tibetan Relations, 1775-1907: The Genesis of Chinese “Suzerainty” and Tibetan “Autonomy”’, (1998) 15 (4) The Tibetan Journal 28, at 39–49, 61–4.
37 W.L. Tung, China and the Foreign Powers. The Impact of and Reaction to Unequal Treaties (1970), 78.
38 Sir F. Younghusband, India and Tibet. A History of the Relations which have subsisted between the Two Countries from the time of Warren Hastings to 1910; with a particular account of the Mission to Lhasa of 1904 (1910), 223–306.
39 Convention Between Great Britain and Tibet. Signed at Lhasa, 7 September 1904, in R.W. Brant, British and Foreign State Papers, 1904-1905 (1909), 148.
40 IOR/L/PS/10 37; IOR/L/PS/10 340-343.
41 Quoted in R. Gopal, India-China-Tibet Triangle (1964), 12.
42 IOR 1904, 154–5.
43 Tang Shaoyi yan jiu lun wen ji (1989); X. Zhang and Y. Su, Tangshaoyi zhuan, Zhongguo renminguo diyi ren neige congli (2004), 45–53.
44 Xu, G., ‘Zhang Yitang chaban Zangshi shimo’, (1988) 2 Xizang yanjiu 48 .
45 Tian, Z., ‘Qingmo Xizang xinzheng ji qi qishi’, (1997) 12 Zhongguo yanjiu .
46 Xu, supra note 44.
47 IOR/L/PS/10/344: 1914-1916. See also the description of the negotiations in Younghusband, supra note 38.
48 Younghusband, supra note 38, at 343–4. Steiner, Z., ‘The Foreign Office under Sir Edward Grey, 1905-1914’, in Hinsley, F.H. (ed.), British Foreign Policy Under Sir Edward Grey (1977), 22–69 .
49 Younghusband, supra note 38, at 345.
50 FO 17/1753, N. 404, Nov. 29, 1904.
51 M.Z. Feng, Zhong ying xizang jiaoshe yu chuan cang bian qing (2007), 140–2.
52 Art. 3 of the Agreement concerning Thibet of the Convention relating to Persia, Afghanistan, and Thibet, 31 August 1907, in J.V.A. MacMurray, Treaties and Agreements with and concerning China 1894-1919 (1921), Vol. 1, at 677.
53 See Arts. 2 and 3 of the Convention between Great Britain and China respecting Tibet. Signed at Peking, 27 April 1906, in G.E.P. Hertslet, Treaties, &c., between Great Britain and China; and between China and Foreign Powers; and Orders in Council, Rules, Regulations, Acts of Parliament, Decrees, &c., Affecting British Interests in China (3d. ed., rev.) (1908), 202.
54 See Li, supra note 8, at 114.
55 See Li, supra note 8, at 66; see also W. Tian, Zhao Erfeng: xue yu jiang xing meng (1997).
56 A.T. Grunfeld, The Making of Modern Tibet (1987), 60, 63.
57 FO 228/2570; FO 228/2571.
58 Younghusband, supra note 38, at 364, 384.
59 Agreement of the Chinese and Tibetans of December 1912, in R. Rahul, ‘The 1912 Agreement Between the Chinese and Tibetans’, (1979) Tibetan Review, 20–1; Proclamation Issued by His Holiness the Dalai Lama XIII (1913), in W.D. Shakabpa, Tibet: A Political History (1967), 246–8.
60 See Li, supra note 8, at 130.
61 A part from Qinghai that could send only one senator, Tibet and Mongolia could have sent five senators (Art. 8). Lin shi yue fa (1912).
62 FO 535/16, No. 88, Enclosure 1, 1913.
63 FO 371/1327, 29616, 11 July 1912.
64 For the memorandum see A. Lamb, The McMahon Line: A study in the Relations between India, China and Tibet, 1904-1914, (1966), Vol. 2, at 433–5-604–5.
65 FO 371/1329, 55588, 14 December 1912. See also Jordan, expressing his concern about China transforming Tibet into a Province. FO 371/1609, 9017, 508, 26 December 1912.
66 FO 371/1609, 1257, 23 December 1912.
67 FO 371/1609, 9017, 4 February 1913.
69 L/PS/10 344, Li, 133–4.
70 L/PS/11 58; see also Li, supra note 8, at 136.
72 L.F. Oppenheim, International Law. A Treatise (1912), Vol. I, at 141.
73 Nuzzo, L., ‘Autonomia e diritto internazionale. Una lettura storico-giuridica’, (2014) 43 Storica 651, at 678–80.
74 See Oppenheim, supra note 72, at 110.
75 J. Westlake, International Law, Part I, Peace (1910), 25–7.
76 From IOR/L/PS/10 340, 148.
77 See Agreement for the Restoration of Peaceful Relations and the Delimitation of a Provisional Frontier between China and Tibet, signed on 19 August 1918 by the British, Chinese, and Tibetan plenipotentiaries, with the Supplementary Agreement Regarding Mutual Withdrawal of Troops and Cessation of Hostilities Between Chinese and Tibetans signed on 10 October 1918. India Office Records, L/PS/10/714.
78 C. Bell, Tibet, Past and Present (1924), 52, 215, 216; H.E. Richardson, Tibet and its History (1962), 93, 96, 98, 101, 103, 104, 108, 109, 113, 114, 117, 118, 122. See also 893.00 Tibet/69, United States Department of State/ Foreign relations of the United States: diplomatic papers, 1943, China, at 638.
79 See Lin, supra note 13, at 19.
80 X. Zhang, Zhonghua Minguo de xianfa yu zhengzhi (1991).
81 See Lin, supra note 13, at 44–6.
82 Ibid., at 69.
83 Z. Shen and S. Liu, Tibet and the Tibetans (1953), at 51.
84 Ibid., at 62.
85 Lin, H., ‘The 1934 Chinese Mission to Tibet: A Re-examination’, (2002) 12 Journal of the Royal Asiatic Society of Great Britain & Ireland 327 ; Lin, supra note 13, at 80.
87 See text in Li, supra note 8, at 169–70.
88 See the map of China of 1938–1939 from the Minister of Internal Affairs with enlarged borders, which included Korea, Siam, Taiwan, Myanmar, Korea, Ryukyu, in Shin, K., ‘The Chinese re-interpretation of the Chinese World Order, 1900-40s’, in Reid, A. and Zheng, Y. (eds.), Negotiating Asymmetries: China's place in the World (2009), 139–58, at 147.
89 M.C. Goldstein, A History of Modern Tibet (2007), 314–49; Chang, S.L., ‘A realist hypocrisy? Scripting sovereignty in Sino-Tibetan relations and the changing posture of Britain and the United States’, (2011) 26 Asian Ethnicity 325 .
90 The Chinese regarded this unilateral action as evidence of transfer of de facto autonomous status to an even bolder de jure independence. So the high-ranking authorities of Chongqing made an official announcement refusing to acknowledge the newly created office in Lhasa.
91 K. Chiang, Zhongguo zhi ming yun (1943). The work China's Destiny and the position of General Chiang Kai-shek about Tibet were well known not only in China but also abroad. For instance there is a reference to the book and Chiang's position over Tibet in: 893.00 Tibet/63, in United States Department of State/ Foreign relations of the United States: diplomatic papers, 1943, at 663.
92 See 740.001 Pacific War/3465 Telegram, The Ambassador in China to the Secretary of State, Chungking, 28 September 1943, United States Department of State/ Foreign relations of the United States: diplomatic papers, 1943, at 641. See also Lin, supra note 13, at 118–20, 170.
93 The British Embassy to the Department of State, S03.24/1594, United States Department of State/ Foreign relations of the United States: diplomatic papers, 1943, China, at 626–8.
94 FO 371/35755, 1811/40/10, 1943. The general attitude of the British Foreign Office with regard to the Chinese suzerainty over Tibet is also dealt in the Viceroy of India's Telegram No. 864-S of 31 March 1943.
95 The Department of State to the British Embassy, Aide-Memoir, Washington, 15 May 1943 (S93.24/1594), in United States Department of State/ Foreign relations of the United States: diplomatic papers, 1943, China, at 630.
96 J. Wu, Zong Ziwen zhu mei shiqi dianbao xuan 1940-1943 (2008), 188. Partly discussed in 893.00 Tibet/64, Memorandum of Conversation, Washington, 31 May 1943, in United States Department of State/ Foreign relations of the United States: diplomatic papers, 1943, China, 633–4.
97 Wu, supra note 96, at 193.
98 893.00 Tibet/70 The British Embassy to the Department of State, in United States Department of State/ Foreign relations of the United States: diplomatic papers, 1943, China, 634–6.
99 740.0011 Pacific War/3272, United States Department of State/ Foreign relations of the United States: diplomatic papers, 1943, China, 641–2.
100 711. 93 Tibet/1-1347, 13 January 1947, United States Department of State/ Foreign relations of the United States: diplomatic papers, 1947, China, 589–91.
101 Zhang, R., ‘Qinchai shiming: Shen Zonglian zai xizang’, (2010) 67 Zhongyang yanjiu yuan jindai shi yanjiu suo jikan 59, at 69 .
104 M.C. Goldstein, A History of Modern Tibet: 1913-1951 (1989), 538–43.
105 See Li, supra note 8, at 174.
106 H. Morghenthau, Politics Among Nations: The Struggle for Power and Peace (1948), 344. Quoted in Werner, W. and De Wilde, J., ‘The Endurance of Sovereignty’, (2001) 7 European Journal of International Relations 283, at 286.
107 Ibid., at 287.
108 As the historian, Odd Arne Westad noticed, with regard to China today: ‘the central problem for China's foreign affairs in the future is that it is an enduring empire that increasingly behaves like a modern nation state’. O.A. Westad, Restless Empire. China and the World since 1750 (2012), 441.
109 J. Wang, The historical status of China's Tibet (1997).
110 Ibid., at 185.
111 See M. Mancallan, China at the Centre, 300 years of foreign policy (1984), 251–4; Twitchett, D.C. and Fairbank, J.K., The Cambridge History of China (1978), Vol. 15, at 16.
* Postdoctoral Fellow at the Princeton-Harvard China and the World Program (2017–18)
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