By Addis Goldman
Ryan Mitchell is a law professor at the Chinese University of Hong Kong. His research focuses on China’s role in international legal order, transnational legal history, as well as legal and political thought. His current research examines the systemic implications of China’s increasingly active role in public international law and connects this ongoing process with its historical background. Mitchell holds a B.A. from the New School, a J.D. from Harvard Law School, and a Ph.D. in Law from Yale University.
Addis Goldman spoke to Mitchell, a law professor at the Chinese University of Hong Kong about his recent book Recentering the World: China and the Transformation of International Law (Cambridge 2022). In this book, he analyzes the Chinese experience of coercive inclusion in Western legal frameworks followed by the development of local expertise and initiatives that occurred in response, contributing significantly to the current global legal order. In Part I of the conversation, Mitchell describes the juridical gaze of European jurists on China in the early and mid-to-late nineteenth century and how early East-West encounters shaped the contours of the global order that coalesced after the First World War. Part II of the conversation reflects on Chinese contributions to the post-World War II international legal order, as well as intellectual trends shaping contemporary Chinese views of world order and international law.
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Addis Goldman: In rich archival detail, your “field-defining study” (Samuel Moyn) narrates China’s gradual transformation from a ‘peripheral’ object of liberal empire to a primary subject of the global legal and economic order. You call attention to the “process by which international law ideas became objects of both reception and contention by officials, diplomats, jurists, and intellectuals in Chinese society” from 1850 to China’s ascension to the WTO in 2001 (7), and in doing so, emphasize the claim that Chinese contributions to processes of international legal ordering have not received their fair due. What initially motivated you to write a book that would accord this conceptual history a “larger space in the modern professional memory of international law” (293)?
Ryan Mitchell: In my view, our system of international law exhibits contrasting legacies of pluralism and hegemony that are not always adequately recognized. Whenever we talk about “rules-based order,” we are also by necessity involving questions about who gets to make the rules, and how it feels to be among the ruled. Taking a closer look at China’s path into a shared global legal order helps us to understand these topics. On the one hand, the Chinese experience of international law from the mid-19th century on was one of the key historical examples of multilateral treaty regimes’ usage as instruments of hierarchical global governance. On the other hand, the aim of changing international law into an order more suited to China’s state and people became a dominant theme in its modern history. Already by the first decade of the 20th century, politically aware students were calling for China to assert itself in international law as a “discourse among equals.”
I also believe that analyzing China’s role in the world today, and the discourses shaping it, requires appreciating how the country helped shape the legal status quo. While the topic of how global norms and institutions are likely to change as Beijing exerts ever greater influence today is indeed important, it is too often discussed without reference to China’s significant roles in the transformations that actually brought about some of those very norms and institutions in the first place. Naturally, the distinction between China pre- and post-1949 and its recent geoeconomic rise are major causes for the trope that it is in some way a disruptively new factor on the world stage. As we can see from the events and discussions recounted in the book, however, not only was China quite involved with shifts in international legal order, but also the ideas and aims of its lawyers and diplomats have been highly consistent across regimes. Ultimately, I think that it is important to recognize that the existing international legal order was a product of various hard-won compromises. Seeing China as a participant in the making of many of those compromises leads to a more realistic view overall of international law and of its possibilities for change–for better and worse.
AG: Two key figures in the first part of your book are the Swiss-born jurist Johann Caspar Bluntschli (1808-1881) and William Alexander Parsons Martin (1827-1916), the American Presbyterian missionary. Bluntschli referred to international lawyers as the “conscience of the civilized world” and impacted Western perceptions of China in the mid-1800s, while Martin sought to expose China to “Christianity, free trade principles, and liberal politics” (27). Can you talk about some of the ways in which civilizing discourse, proselytization, and the ‘Orientalizing gaze’ shaped Chinese encounters with international law in the early-to-mid nineteenth century—and in the present day, for that matter?
RM: It’s certainly true thatseveral of the Western legal discourses examined, particularly from the Opium War era through the 1930s, manifested in various ways what can fairly be described as “Legal Orientalism,” to refer to the title of Teemu Ruskola’s book exploring some key related episodes and practices. However, in spending time with Bluntschli, Martin, and others, I was not primarily interested in deconstructing their views of China as a civilizational Other. Instead, I wanted mainly to focus on taking a fresh look at these figures in international legal history, seen as participants in the intellectual trajectory of Western liberalism and its projects for world order, which often took on China as an object. This process in China indeed played a key role in the broader dynamic of law’s use to extend Western power, and property ownership, “To the Uttermost Parts of the Earth,” as Martti Koskenniemi has recently put it in a long historical overview.
What struck me about these figures was their grandiose belief in their ability to transform or instruct the world and their conviction that they had found the right doctrines with which to do so. This was despite the actual content of international law during their times having quite extensive allowances for brutal power politics–one Chinese diplomat in 1899, for example, joked that Western states should simply write up a formula for how much territory to seize whenever a missionary happened to die abroad. The combination of a Romantic self-image with an ability to overlook the violence or ostracism inflicted on others in pursuit of its realization is a set of traits that I find historically important, and perhaps familiar to anyone who has studied the modern history of American foreign policy. I also found it important to dwell upon the idiosyncrasies of Western international lawyers because it was often against them that Chinese lawyers and diplomats were reacting as they found their own voice on international legal questions. The experience of becoming an object for Western legal norms led to Chinese counterproposals emphasizing local autonomy.
AG: You describe the Qing defeat in the First Sino-Japanese War of 1894-1895 as “the most significant geopolitical and ideological shock that altered both China’s domestic intellectual climate and its position in global hierarchies.” Relatedly, you describe the Boxer Rebellion (1899-1901) and its resolution—“the most internationalized use of force in modern history thus far” (121)—with the implementation of the Boxer Protocol as a crucial inflection point. In a sense, the Boxer Protocol formalized the “open door” regime and also had broader ramifications for understandings of “just war” theory, wherein internationalized forceful intervention became more and more thought of as a kind of legalistic form of collective policing action. Why were these events so significant for the story you are trying to tell?
RM: The First Sino-Japanese War tends to be understood as the major turning point for the Qing Dynasty, sealing its fate in terms of subjection to foreign spheres of influence and even its ultimate overthrow by nationalist revolutionaries. Likewise, it’s commonly understood in terms of modern Chinese intellectual history as the moment that, for many politically aware citizens, crystallized their determination to change their country’s political and social order in pursuit of safety and strength. On these points, I agree with much of the existing literature. What I found that surprised me, however, was the strong evidence that the Japanese influence should be taken just as seriously as early as the 1870s, when interactions such as the dispute over Ryūkyū / Liuqiu and Taiwan led to Meiji officials confronting their Qing counterparts directly with Western international law ideas, which the latter were actually quite quick to adopt at the elite level.
Indeed, I argue that it was Ōkubo Toshimichi‘s communiqué of 1874 that sparked the resumption of translations of international law texts, the specific selection of texts (particularly Bluntschli’s Das moderne Völkerrecht der civilisirten Staten), and, perhaps most notably, the phenomenon of Chinese adoption of a “Western / Japanese” meaning for the preexisting term zhuquan, for “sovereignty.” While this term had existed for millennia to refer to “the ruler’s authority,” only with the Japanese confrontations from the 1870s, and the defeats of the following decades culminating in the Boxer calamity, did it come to be embraced as an idea of formal legal title to territorial ownership and administrative control. By the early 20th century, as Rune Svarverud has previously shown, international law texts translated from Japanese dominated Chinese discourse on sovereignty.
Moving from the Chinese intellectual history context to that of the global international law profession, these events were also significant. They are, I believe, still undervalued by international legal scholarship more generally, which tends to produce only specialized works on non-Western topics and historical episodes. Yet the Boxer occupation, for example, was certainly the most remarkable instance of a humanitarian intervention based on late 19th century doctrines, one of the most extreme instances of the then-existing institution of armed reprisal “short of war,” and also a groundbreaking type of multilateral international law enforcement. It was seen as a major event in legal history at the time, as reflected even in textbooks such as Oppenheim’s canonical series. But today it is hardly mentioned in the West even in works devoted to precisely that era in international legal history.
AG: Throughout the book, conventions, treaties, and major summits signpost the gradual codification of rules governing interstate relations, and, in turn, narrate China’s shifting position in the international system and relationship to international legal order. Early on, you discuss ‘unequal’ treaties like the Convention of Peking in 1860, in which China was clearly treated as an object of imperial rent-seeking and subordination. You go on to document the emergence of an “organized body of trained international lawyers” (167)—figures such as Zhou Gengsheng (1889-1971), the “dean of Chinese international law scholars” (169), Lu Zhengxiang (1871-1949), and Wellington Koo (1888-1985)—at the turn of the twentieth century and their assessments of and significant contributions to the successive Hague Conferences and the Paris Peace Conference. Can you talk about the evolution of China’s experience with the organization of international legal order, especially in the early-to-mid twentieth century?
RM: In the book, I try to situate the development of the Chinese international law profession alongside changes to the international legal order and its ideas. There are a number of individuals, such as those just named, who are routinely mentioned in diplomatic histories of China, but whose role in legal contexts is often left fairly nebulous. I wanted to show some of the concrete roles and interactions of these important figures particularly to illustrate some of their similarities and differences. It seems clear, for example, that Wellington Koo, Zhou Gengsheng, and China’s first international judge, Wang Chonghui, each had rather different ways of engaging with international law, putting varying degrees of emphasis on politics in comparison with legal doctrine.
The same diversity is certainly even more true of some of the more forgotten lawyers, such as Zhou Wei, China’s first member of the Institut de Droit International and a figure who influenced the design and functioning of the League of Nations, before ending up in disgrace as a collaborator with Japan during the Second Sino-Japanese War. Meanwhile, a later generation of international lawyers had their training in the interwar and war years, only to find themselves debating whether to leave or remain in Mainland China as the Cold War was initiated. One thing that united all of these individuals, however, was the clear perception of China’s disadvantaged role in a Eurocentric international order, and the desire to rectify that status by asserting China’s role as a power equal to any in the West. Their state’s experience of entering international legal order made many Chinese lawyers and diplomats embrace a kind of qualified “Realism” avant la lettre, with major legacies in Beijing’s views on law and power in global governance today.
Addis Goldman is a writer and researcher based in New York City. He holds a BA from Colorado College and an MA from the University of Chicago.
Edited by Andrew P. Gibson
Featured Image: Thomas Child – Audience with Tung Chih, 1873. WikiCommons.
