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The Development of Chinese International Law Terms and the Problem of Their Translation into English

Published online by Cambridge University Press:  23 March 2011

Hungdah Chiu
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In 1951, the Chinese delegate to the United Nations proposed to the General Assembly that the Chinese text of the Genocide Convention be revised. The reason for revision, as stated in the Chinese proposal, was that there existed a number of discrepancies between the Chinese text originally prepared by the United Nations Secretariat and the other official texts. The Chinese delegate included in his proposal a new Chinese text for consideration by the General Assembly. Of the proposed changes the most important one related to the Chinese translation of the term “genocide.” The term had originally been translated by the Secretariat as “wei-hai chung-tsu” (lit., “to cause harm or to destroy racial groups”), while the new Chinese text translated the term as “ts'an-hai jen-ch'ün” (lit., “to cause harm to or to destroy human groups in a ruthless manner”). The new translation is closer to the meaning of the term “genocide” which, as defined in Article 2 of the Convention, encompasses any act “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” The Chinese proposal was adopted by the General Assembly on December 21, 1952, by Resolution 691 (VII).

Type
New Developments in Western Studies of Chinese Law: A Symposium
Information
The Journal of Asian Studies , Volume 27 , Issue 3 , May 1968 , pp. 485 - 501
Copyright
Copyright © Association for Asian Studies, Inc. 1968

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References

1 See U.N. Doc. A/1880 (1951).

2 Adopted by the General Assembly Resolution 260 (III), December 9, 1949.

3 See U. N. Doc. A/2221 (1952).

4 For a comparison of the new Chinese text and the Chinese text prepared by the Secretariat, see id.

5 The New York Times, January 15, 1967.Google Scholar

6 Treaty of Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, adopted on December 19, 1966, by General Assembly Resolution 2222 (XXI).

7 The Chinese translations later adopted by the United Nations of these two terms are “t'ien-t'i” (celestial body) and “jen-lei ch'üan-t'i chih-shih” (the province of mankind).

8 For the history of introduction of international law to China, see generally, Hsü, China's Entrance into the Family of Nations 121–31 (1960)Google Scholar. See also Martin, , Cycle of Cathay 221 (1896)Google Scholar; Wilson, , “Henry Wheaton and International Law,” in Wheaton, Elements of International Law (Text of 1966 with notes) 133, 16a (1936)Google Scholar; Bennett, , Americans in Eastern Asia 385 (1922; reprint 1963).Google Scholar

9 Martin's Chinese preface. It was stated in the preface that international law “is like the laws and regulations of the various states, hence it is also called wan-kuo lü-li.”

10 Martin, , I, 4Google Scholar; Wheaton, 8.Google Scholar

11 See Shih-tseng, Hsu, Wen-t'i ming-pien (A style of writings), XXI, 38 (1580)Google Scholar. Some letters or messages between the states of Sung and Liao (11th-12th century) were in the style between equals. See several examples given in id. 47–49.

12 Wheaton, 315Google Scholar; Martin, , IV, 13Google Scholar. The Chinese term “chao-hui” is a literal translation of the English term “recall.”

13 This translation is in part retained today. The current Chinese (Nationalist and Communist) translation of “letter of recall” is “t'zu-jen kuo-shu” which literally means “letter of resignations.” Kozhevnikov (C) 310; Ts'ui Shu-ch'in, Kuo-chi fa (International law), I, 174–75 (Shanghai, 1947).Google Scholar

14 Martin, , II, 49Google Scholar; Wheaton, 184Google Scholar. For examples of the use of the term “hai-tao” in Chinese historical materials, see Dai kan-wa ji ten (Great Chinese-Japanese dictionary), VI, 1170.Google Scholar

15 Wheaton, 317Google Scholar; Martin, , III, 14Google Scholar. For examples of the use of the term “yüeh” or “mien” in ancient China, see Ku-yüan, Ch'en, Chung-kuo kuo-chi fa su yüan (The origin of Chinese international law) 221–22 (Shanghai, 1934)Google Scholar. In one section of his work, Martin also translated the term “treaty” as “t'iaoyüeh,” which is currently the accepted translation of that term. Wheaton, 332Google Scholar; Martin, , IV, 19.Google Scholar

16 Wheaton, 610Google Scholar; Martin, , IV, 69Google Scholar. For examples of the use of the term “ho-yüeh” in Chinese historical materials, see Dai kan-wa ji ten, II, 981.Google Scholar

17 Chan-kuo ts'e (Strategies of the warring states), VII, 75 (Shanghai, Commercial Press, 1935)Google Scholar. See also Dai kan-wa ji ten, I, 314.Google Scholar

18 Wheaton, 480Google Scholar; Martin, , IV, 38.Google Scholar

19 During the 11th and 12th centuries, the relationship between the states of Sung and Liao was one between equals. The head of the envoy sent by Sung to Liao during that period was commonly referred to as “ta-shih.” See Tsung-chi, Nich, “Sung-Liao chino-p'ing k'ao” (Envoys between Sung and Liao), Yen-ching hsüch-pao, 27: 1, 6 (June 1940).Google Scholar

20 Wheaton, 278Google Scholar; Martin, , IV, 3.Google Scholar

21 See Dai Kan-wa ji ten, IX, 414.Google Scholar

22 Wheaton, 86Google Scholar; Martin, , II, 1Google Scholar. Martin also translated the term “self-preservation” as “tzu-hu,” but in Wheaton's treatise, “self-preservation” is a much broader concept than “self-defense.” Cf. the following passages quoted from Wheaton:

Of the absolute international rights of states, one of the most essential and important, and that which lies at the foundation of all the rest, is the right of self-preservation…. This right necessarily involves all other incidental rights, which are essential as means to give effect to the principal end. Among these is the right of self-defense. Wheaton 85–86.

23 Wheaton, 322, 328Google Scholar; Martin, , III, 16.Google Scholar

24 Article 8 of the 1842 Treaty of Nanking and its Chinese text. Imperial Maritime Customs, Treaties, Conventions, Etc., between China and foreign States, I, 164 (Shanghai, 1908).Google Scholar

25 Wheaton, 29Google Scholar; Martin, , I, 17.Google Scholar

26 Wheaton, 355Google Scholar; Martin, , III, 26Google Scholar. In one section of Martin's translation, he translated the term “good offices or mediation” as “t'iao-ch'u,” Wheaton, 106Google Scholar; Martin, , II, 12Google Scholar. The current translation of “mediation” is “t'iao-t'ing,” “good offices” is “kan-hsuan.”

27 Wheaton, 363Google Scholar; Martin, , IV, 2.Google Scholar

28 Wheaton, 535Google Scholar; Martin, , IV, 52.Google Scholar

29 Wheaton, 575Google Scholar; Martin, , IV, 55.Google Scholar

30 Wheaton, 317Google Scholar; Martin, , III, 14.Google Scholar

31 Wheaton, 283Google Scholar; Martin, , III, 6.Google Scholar

32 Wheaton, 112Google Scholar; Martin, , II, 17Google Scholar. Martin explains the term “chih-wu” as including houses, land and other immovables, not just trees. Martin, id.

33 Wheaton, 112Google Scholar; Martin, , II, 17.Google Scholar

34 Wheaton, 87Google Scholar; Martin, , II, 2.Google Scholar

35 Wheaton, 27.Google Scholar

36 Martin, , II, 16Google Scholar. The Chinese text is as follows: “Ti-yi chieh. Jen ch'eng-ch'ün erh li-kuo, erh pangkuo chiao-chi yu shih, t'zu kung-fa chih so-lun yeh.”

37 Hsing-chao chih-ch'an (Charles de Marten, La guide diplomatique), 4 vols., 1876Google Scholar; Kung-fa pien-lan [Woolsey, Introduction to the Study of International Law], 6 vols., 1877Google Scholar; Kung-fa hui-t'ung (Bluntschli, Le Droit International Codifie), 10 vols., 1880Google Scholar; Lu-ti chan-li hsin hsüan (L'institut de Droit International, Manual of the Laws of War on Land), 1883.Google Scholar

38 E.g., “interference” or “intervention” was translated as “kan-yü,” Kung-fa pien-lan, I, 10Google Scholar; Woolsey, Google Scholar, Introduction to the Study of International Law 58 (3rd ed., 1871).Google Scholar

39 Ko-kuo chiao-she kung-fa lun, 16 vols. 1896.Google Scholar

40 E.g., the term “prescription” was translated by Martin as “lao-ku,” but Franzer translated it as “nien-chiu shou-yung.” Martin, , II, 66Google Scholar; Ko-kuo chiao-she kung-fa lun, I, 293.Google Scholar

41 See Zengo, Ōhira, “Nihōn no kokusai ho no juyō” (The reception of international law by Japan), Shōgaku Tokyū, 4.3: 299–314 (December 1953).Google Scholar

42 See Jumpei, Shinobu, “Vicissitudes of International Law in the Modern History of Japan” [English], Kokusaihō gaiko zasshi, 50.2: 14 (May 1951).Google Scholar

43 See Kisaburo, Yokota, Kokusai hogaku (Science of international law), I, 140–44 (Tokyo, 1955)Google Scholar. In 1912 Kokusaiho zasshi was renamed Kokusaihō gaiko zasshi (Journal of International Law and Diplomacy).

44 For a study of the history of Chinese students in Japan, see Keishū, Sanetō, Chūgokunin nihon ryūgakushi (History of the Chinese students in Japan) (Tokyo, 1960)Google Scholar. For a list of Japanese books on international law translated into Chinese, see Keishū, Sanetō, Chung-yi jih-wen shit mu-lu (List of Chinese translation of Japanese books) [Chinese] 47–73 (Tokyo, 1945)Google Scholar. Many Japanese international law articles in the late nineteenth century and early twentieth century, particularly those in Kokusaihō zasshi, were translated into Chinese in Wai-chiao pao (Foreign affairs journal).

45 See notes 35, 36 and accompanying text supra. Nor was the translator of Ko-kuo chiao-she kungfa lun able to translate this term. Thus, the paragraph in Phillimore on subjects of international law which asserts that “states are the proper, primary, and immediate subjects of International Law,” was translated as “chiao-she kung-fa chuan yin kuo erh she” which if retranslated into English would be: “International law is formulated exclusively for states.” Phillimore, Commentaries upon International Law, I, 79Google Scholar; Ko-kuo chiao-she kung-ja lun, I, 1.Google Scholar

46 E.g., in Ch'en Lu-chieh, P'ing-shih kuo-chi kung-fa (International law of the peace), written primarily based upon lectures given by the Japanese scholar Yamawaki Sadao and published in 1907, the term “chu-t'i” was used as the translation of the English term “subjects.” For a study of the influence of Japan on modern Chinese terms, see generally, Ming-K'ai, Kao and Cheng-t'an, Liu, Hsien-tai han-yü wai-lai tz'u yen-chiu (A study of the words derived from foreign sources in modern Chinese) 79–97 (Peking, 1958).Google Scholar

47 Wheaton, 176Google Scholar; Martin, , II, 46.Google Scholar

48 E.g., the term “yin-tu” in Matsushima Haijime's article was translated into Chinese as “chiao-ch'u” see Kokusaihō zasshi, 6.8–29 (1907)Google Scholar; Wai-chiao pao, No. 211.

49 E.g., in Chou Keng-sheng, Kuo-chi ja ta-kang (Outline of international law), published in Shanghai in 1929, the term “extradition” is translated as “yin-tu.” id. 152.

50 Nobushige, Hozumi, Hōsō yawa (Nightly discourse on law) 179 (Tokyo, 1932).Google Scholar

51 The earliest Chinese book which used the title “Kuo-chi fa” seems to be Lin Ch'i's Kuo-chi fa ching-yi (Essentials of international law), which was primarily based on Japanese books on international law and which was published in 1903 by Min-hsüeh hui (Fukien learning association). The Japanese did not reject all of Martin's Chinese translations of Western international law terms. For example, the use of the term “chu-ch'üan” as the translation of “sovereignty” was accepted by Japanese scholars from the very beginning and is still used in Japan today.

52 E.g., Chou Keng-sheng, one of the most prominent international law scholars in China, did graduate study in international law at University of Manchester and University of Paris. Another prominent scholar, Ts'ui shu-ch'in (1906–57), did graduate study in international law at Harvard University.

53 E.g., in Chou Keng-sheng's Kuo-chi fa ta-kang, none of the reference books mentioned is in Japanese.

54 Wheaton, 23Google Scholar; Martin, , I, 14Google Scholar; Chou, , Kuo-chi fa ta-kang 296Google Scholar; Ts'ui, , Kuo-chi fa, II, 221Google Scholar. Wheaton used the term “prize tribunal” or “court of prize,” while the current English term is “prize court.”

55 In Hai-shang p'u-huo t'iao-li (Maritime prize statute), promulgated on October 30, 1917, by the Peking government, the term “p'u-huo shen-chien t'ing” was used to refer to “prize court.” See Fu-yen, Wang, Kuo-chi kung-fa lun (On the public international law), II, 254, 266 (Shanghai, 1933)Google Scholar. The statute was later replaced by a new statute promulgated by the Nationalist government in 1932. The new statute used the term “p'u-huo fa-yüan” to refer to “prize court.”

56 E.g., Ch'en T'i-ch'iang, Wang T'ieh-yai, Mei ju-ao, Chou Keng-sheng, etc. were all former Nationalist international law scholars. Ch'en and Wang were purged in 1957. Mei was declared a rightist in 1958, but in view of the fact that an article of his was published in 1964, it seems likely that he has been removed from the list of rightists. See Chen-fa yen-chiu (Political-legal research)Google Scholar, 5:19; Jenmin jih-pao (People's daily), April 25, 1964.Google Scholar

57 These three books are: (1) Ts'ui, Kuo-chi fa; (2) Chinese version of Kozhevnikov's Mezhdunarodnoe pravo; and (3) Chinese version of Higgins and Colombos' International Law of the Sea (2nd ed. 1951)Google Scholar. (Translated by Wang Ch'iang-shen and published in Peking in 1957.)

58 The term “clausula rebus sic stantibus” refers to the doctrine that “a treaty is intended by the parties to be binding only as long as there is no vital change in the circumstances assumed by the parties at the time of the conclusion of the treaty.” Schwarzenberger, , A Manual of International Law xxxix (London, 3d ed. 1952)Google Scholar. The Nationalist translation, if retranslated into English, would be “clause of changed circumstances”; while the Communist translation would be “clause of unchanged circumstances.” Despite their difference in the literal meaning of the two translations, both refer to the doctrine of “clausula rebus sic stantibus.” See Ts'ui, op. cit., supra, note 57, 240; Kozhevnikov (c) 282. It may be noted that one prominent Communist writer, Professor Chou Keng-sheng, also used a translation which is similar to the Nationalist translation. He used the term “ch'ing-shih pien-ch'ien” in his article entitled “Ts'ung kuo-chi fa ti chiao-tu k'an hsi po-lin wen-t'i” (Looking at the West Berlin question from the angle of international law). Kuo-chi wen-t'i yen-chiu, 1959.1:40, 44.

59 E.g., see Jen-min jih-pao, December 23, 1966Google Scholar, at 5.

60 E.g., see Chung-yang jih-pao (Central daily news), International Edition, editorial, Jan. 30, 1967. But in the late nineteen fifties Communist Chinese also used the term “t'ai k'ung” to translate “outer space.” E.g., see Jen-min jih-pao, December 8, 1957, and January 5, 1959Google Scholar. The translation of “outer space” recently used by the official New China News Agency is either “wai-ts'eng k'ung-chien” or “yü-chou k'ungchien” (lit., “cosmic space”). See Hsin-hua t'ung-hsün she wai-wen kan-pu hsüeh-hsiao pien (Compiled by foreign language cadre school of New China News Agency), Han-ying shih-shih yung-yü tz'u-hui (Dictionary of Chinese-English terms of current affairs) 387, 475 (Peking, preliminary ed. 1964).

61 The translations used by Nationalist international scholars are not consistent. Some translate the term “genocide” as “mieh-chüeh chung-tsu” which is very close to the translation used by Communist Chinese scholars. See Sun-sheng, Lei, Kuo-chi fa yüan-li (Principles of international law), I, 222 (Taipei, 1960)Google Scholar; K'e-ch'in, Shen, Kuo-chi fa (International law) 282 (Taipei, 1964).Google Scholar

62 The only exception known to this author is the term “pu-p'ing-teng t'iao-yüeh” (unequal treaty).

63 Ying T'ao, “Ts'ung chi-ke chi-pen kai-nien jen-shih tzu-ch'an chieh-chi kuo-chi fa ti chen mienmu” (Recognize the true face of bourgeois international law from a few basic concepts), Kuo-chi wen-t'i yen-chin (Studies in international problems), 1960.1: 42, 43.

64 Starke, , Introduction to International Law 253 (1st ed. 1947).Google Scholar

65 Oppenheim, International Law, II, 106 (6th ed. Lauterpacht, 1940)Google Scholar, 132 (7th ed. Lauterpacht, 1952).

66 The Chinese version of Oppenheim was not available to this author. It is not clear whether the Chinese translation of Volume 2 of Oppenheim's treatise was based upon the 6th edition (1940) or 7th edition (1952). The author believes that the Chinese version was based upon the 7th edition.

67 Oppenheim, , II, 106–07Google Scholar (6th ed.), 132–33 (7th ed.).

68 Starke, , 253.Google Scholar

69 The Japanese translation of this term is the same.

70 The Chinese and Japanese translation of “recognition of belligerency” do not suggest any conceptual distortion in the Chinese or Japanese treatises of international law. For instance, in Ts'ui's treatise, his explanation of the term “recognition of belligerency” is similar to that of Wilson's. See Ts'ui, op. cit., supra, note 57, I, 51; Wilson, , International Law, 69 (9th ed. 1935)Google Scholar. The Japanese scholar Shigejiro Tabata gave an explanation of “recognition of belligerency” which is similar to that of Oppenheim's. See Tabata, , Kokusai ho I (International law I) 212 (Tokyo, 1957)Google Scholar; Oppenheim, International Law, II, 249 (7th ed. Lauterpacht, 1952).

71 Wu, Hsin, “Tui tzu-ch'an chieh-chi kuo-chi fa kuan-yü kuo-chia ling-t'u wen-t'i ti p'i p'an”Google Scholar (A criticism of the bourgeois international law on the question of state territory), Kuo-chi wen-t'i yen-chiu, 1960. 7:42–43.Google Scholar

72 See Hungdah, Chiu, “Communist China's Attitude Toward International Law,” American Journal of International Law, 60.2:263–67 (1966).Google Scholar

73 Molodtsov, , “Nekotor'īe Vopros'ī terroitorli v Mezhdunarodnom prave,” Sovetskoe gosudarstvo i pravo (Soviet state and law), 1954.8: 63Google Scholar. Translated into Chinese in Hsien-tai kuo-chi fa shang ti chi-pen yüan-tse ho tven-t'i (Fundamental principles and problems in modern international law) 149 (Peking, 1956).Google Scholar

74 In the Chinese version of Kozhevnikov's Mezhdunarodnoe pravo published in 1959, these theories were translated respectively as “tui-hsiang shuo,” “kung-chien shuo” and “ch'üan-hsien shuo” (lit., “competence theory”). Kozhevnikov (C) 179–80. The first and third terms are different from those used in Kuo-chi wen-t'i yen-chiu.

75 Kozhevnikov (E) 177–79.

76 Lauterpacht used the terms “object theory” “space theory,” and “competence theory,” respectively, in his Private Law Sources and Analogies of International Law (London, 1927)Google Scholar. id. 91–93.

77 Kuo-chi wen-t'i yen-chiu, 1960.5:40.

78 Kozhevnikov (R) 131, (C) 135, (E) 136.

79 Cf. part 2, chapter 4, of volume I of Oppenheim's International Law on “individuals” (8th ed. 1955) and chapter 4 of Kozhevnikov's International Law on “Population in International Law” (Moscow, 1961).

80 The Chinese equivalent for “individuals” is “ko-jen” and the Russian is “individuum.”

81 Kozhevnikov (C) 183, (R) 179.

82 Kozhevnikov (E) 182.

83 Cf. the following passage is quoted from Oppenheim: “Occupation is the act of appropriation by a State through which it intentionally acquires sovereignty over such territory as is at the time not under the sovereignty of another State.” International Law, I, 555 (8th ed. Lauterpacht, 1955).

84 E.g., Article 2 of Friendship Treaty between Communist China and Indonesia, signed on April I, 1961, refers to “kuo-chi kuan-li,” but the English text published in Peking Review translated the term as “international practice.” See Chung-hua jên-min kung-ho kuo t'iao-yüeh chi (Compilation of treaties of the People's Republic of China), X, 7 (1961)Google Scholar; Peking Review, 4.24: 11 (June 16, 1961)Google Scholar. The Nationalist practice is far from consistent. In Article 6 of the Sino-American Treaty for the Relinquishment of Extraterritorial Rights in China, signed on January 11, 1943, the English text refers to “international usage,” while the Chinese text refers to “kuo-chi kuan-li”; in Article 7, the English text refers to “international practice,” while the Chinese text again refers to “kuo-chi kuan-li,” But in Article 3 of the Sino-Czechoslovakia Treaty of Amity and Commerce, signed on February 12, 1930, the English text refers to “international practice” while the Chinese text refers to “kuo-chi t'ung-li,” which is a more literal translation of the English term. Ministry of Foreign Affairs (ed.), Treaties Between the Republic of China and Foreign States (1927–1957) 72, 663, 664 (Taipei, 1958).

85 E.g., see Fenwick, , International Law 88–89 (4th ed. 1965).Google Scholar

86 All these treaties concluded from 1950–65 were published in a single volume entitled “Chung-hua jen-min kung-ho kuo yu-hao t'iao-yüeh hui-pien” (Collection of friendship treaties concluded by the People's Republic of China), published in Peking in 1965.

87 See Treaty of Friendship between Communist China and Ghana, signed on August 18, 1961. id. 61 (Chinese version); 63 (English version), both texts being equally authentic.

88 Oppenheim, , International Law, I, 305 (8th ed. Lauterpacht 1955).Google Scholar

89 Writers in the nineteenth century did not seem to differentiate the term “intervention” from the term “interference.” In Wheaton's Elements of International Law, the two terms were used interchangeably. id. 87–93. The term “interference” is today not generally used as a technical term of international law.