• Journal Name : China Legal Science
• Author : Li Mingqian
• Institution : East China University of Political Science and Law
• Year : 2016
• Issue : 6
• Page : 84

TABLE OF CONTENTS

I. THE INTRODUCTION TO THE LATE QING TREATIES 86

II. LEXICON DISCREPANCY IN TREATY TRANSLATION 90

III. BEHIND THE DISCREPANCY 94

IV. BEYOND THE DISCREPANCY 98

V. CONCLUSION 104

TERMINOLOGY TRANSLATION OF THE LATE QING TREATIES

Li Mingqian*

During the Late Qing (1840-1911) period, the Qing government signed a series of treaties with Western countries, to which Qing granted the “favored nation clause” , consented to the practice of extra-territoriality within her dominions, agreed to pay vast sums of money as compensation and a range of other national humiliations that humbled Qing's sovereignty. These unequal treaties sacrificed the fundamental national interests for satisfying the avarice of Western countries, and their influences on modern Chinese society have not only become a frequent topic within legal and political studies,[1]but also a very important part which cannot be ignored in the field of international relations.

In addition, it has aroused high attention from the historical study of law and translation. There are already several books and articles that center on Late Qing treaties. For instance, Fan Shouyi analyzed the language style and lexical features in the Treaty of Nanking and the Treaty of Wanghea, based on a comparison between the English and Chinese version of texts;[2]Hu Qizhu and Jia Yongmei, in accordance with the translation of the Treaty of Nanking, provided an analysis on John R. Morrison's relationship with the First Opium War, pointing out that translation involves political issues as well as the “neutral” attitude and choices of translators;[3]Wang Hongzhi, based on a case study of Wan Tao, a translator participating in the translation of Western literature from an early stage, has presented an examination on the initial collisions and contractions of traditional Chinese thoughts with imported Western ideas with numerous concrete details;[4]Guo Weidong, an expert on the Opium War, examined the Sino-British disputes over Hong Kong from a translation perspective, and pointed out that the translation is also about politics and that translated words often played a vital role in the negotiation of territorial issues,[5]Qu Wensheng combed the wording discrepancy between the English and Chinese version of the Treaty of Nanking, and concluded that there are some “buried” Western legal concepts within the English-Chinese translation of the Treaty of Nanking.[6]Furthermore, Fairbank's Cambridge History of China has rich historical narratives and treaty texts. Ji Yaxi and Chen Weimin, authors of Foreigners and Modern Unequal Treaties and Modern China Translators, elaborated on the relations between translators and unequal treaties, focusing on the role of translators.[7]Besides, Mao Haijian, Liu He and Lovell's writings also mention, to varying degrees of extent, the part which translation had played in Late Qing treaties. All of these research cases and studies have contributed to comprehending the complex political struggles and cultural conflicts behind the wording of treaties, as well as China's diplomatic relations in the 19th Century.

While researchers have analyzed these treaties from certain diplomatic and historical points of view, few have carried out explorations from a textual perspective, in relation to the mechanism and contextual meaning of lexicon translation. One of the major obstacles to the introduction of Western learning to China in the 19th Century was exactly the lack of corresponding terminological basis in the Chinese literary language.[8]During the Late Qing Dynasty, Western science and technology required an entirely new Chinese lexicon in order to convey their terms.

Accordingly, the concerned in this study is the lexicon, including words and expressions of specific legal implications or usage in Late Qing treaties. It aims to provide a thorough research into the terminology translation of treaties with the comparison between the source text (the English version of treaties) and the target text (the Chinese version); to analyze the problems of the Chinese local lexicon encountering a completely different set of terms originated from Europe; and to probe into how the knowledge of the international law system was introduced into China. Also, through analysis, this article hopes to elaborate on the adoption of Western learning in specific historical, political and cultural backgrounds.

I. THE INTRODUCTION TO THE LATE QING TREATIES

The so-call “treaty system” refers to a series of unequal treaties imposed on Late Qing by Western powers after the Opium War, as well as to its foreign relations on that basis. The treaty system is the core product of modern international law. According to the mainstream of international law and relations, the Peace of Westphalia, signed in 1648, is the very starting point of modern international law in Europe. Modern European countries have been accustomed to dealing with issues of international relations through the conclusion of treaties, and they have applied the treaty system in order to solve disputes among nations, maintain diplomatic intercourse and regulate trade.

Along with the colonial expansion of European countries in the 19th Century, this pattern of intercourse beyond the nation states was taken overseas, and the order of European countries had gradually been extended to the international level. Though negotiating and concluding treaties with the non-European regions, Western rules were disseminated, and the lexicon of modern international law was dispersed. The contact between European international law and China is a specific example.

The critical years from 1839 to 1844 witnessed the opium controversy develop into a war between the United Kingdom and the Qing Empire, resulting in the epochal Treaty of Nanking. It is a watershed in the encounter between China and the international law, and had marked the end of the First Opium War between the United Kingdom and the Qing Empire (1839-1842).[9]In the wake of China's military defeat, with British warships posturing to attack her cities, representatives from the United Kingdom and the Qing Empire negotiated aboard HMS Cornwallis, anchored at Nanjing. On August 29, 1842, British representative Sir Henry Pottinger and Qing representatives Qi Ying, Ilibu and Niu Jian, signed the Treaty. The Treaty consisted of thirteen articles, and was ratified by Queen Victoria and Emperor Daoguang nine months later.

Since the Treaty of Nanking was brief and with only general stipulations, the British and Chinese representatives agreed that a supplementary treaty be concluded in order to work out more detailed regulations for commerce and relations. On October 3, 1843, the supplementary Treaty of the Bogue was concluded at Bocca Tigris outside Canton. Nevertheless, the treaties signed between 1842 and 1843 left several unsettled issues. In particular, they did not specifically legitimize the opium trade. The United States followed up the success of the United Kingdom, and Caleb Cushing negotiated the Treaty of Wanghea in 1844. France soon joined in the invasion, signing the Treaty of Whampoa with China in the same year. These treaties established a new framework for China's foreign relations and foreign trade, which would last for almost a century.

The United States, the United Kingdom and France had acquired the following rights in China through the treaties: first, the right to conduct foreign trade at free will and the right of unilateral most-favored-nation treatment; second, the right to negotiate tariffs; third, the right to preach in China, as well as the right of obtaining rented land or houses for proper accommodation; fourth, the right of consular jurisdiction; fifth, the possession right of certain Chinese territories. These rights of inequality constituted the earliest system of unequal treaties in China, while later concessions such as the right to cruise along inland rivers as well as the articles stipulating huge compensation were merely the extension to them.[10]

During the last decade of the 19th Century, Li Hongzhang and Ito Hirobumi at the Shunpanro Hall, Shimonoseki signed the Treaty of Shimonoseki in 1895. From then, the Late Qing government had shifted their attention to Japan, sending more and more government officials and students to Japan for study and research. In 1901, on behalf of the Late Qing government, Li Hongzhang signed the Boxer Protocol with eleven nations. Due to the conflict of interests among the foreign powers, China had the fortune to maintain its territorial integrity. However, the punitive articles of the Boxer Protocol allowed foreign countries to base their troops along Peking to Tientsin, and claimed huge compensation for military expenditure. In accordance with article XI of the Boxer Protocol, foreign countries negotiated with the Late Qing government to amend the treaties and regulations concerning commercial relations. From 1902 to 1906, representatives of the United Kingdom, the United States, Japan, Portugal, Germany and Italy and so on, successively negotiated with the representatives of the Late Qing government to discuss the arrangements of amending the treaties of commerce.[11]

In 1902 for the first time the Treaty Respecting Commercial Relations, etc., namely, the Mackay Treaty, was negotiated and signed by and between Late Qing and the United Kingdom. The Treaty became the example for other nations to negotiate and sign treaties of commerce with the Late Qing government.[12]Back then, it mainly focused on the issue of likin taxation, concerning regulations of mineral affairs, the protection of intellectual property right, the freedom of navigation of inland rivers, the opening of trading ports, the unification of weights and measures, extraterritoriality, missionary, drawbacks, warehouses for goods of protective tariff, joint venture companies, river dredging, foreigners living inland, the opium trade, food import, diplomatic principles and so on.[13]

Gradually, treaties had become a regular legal form of exchanges between China and the West. The total amount of nations, which China had signed unequal treaties with, has always been controversial. According to the statistics of Hu Lizhong, China were coerced to sign unequal treaties with forty-two nations, such as the United Kingdom, France and the United States.[14]However, scholars have also proposed that since the Treaty of Nanking, 1842, China had successively signed up to one thousand unequal treaties with twenty-one nations.[15]These treaties had once poked into every nook and cranny of the politics, economy, military, diplomacy, judiciary and culture of China, establishing a massive and hideous system of coercion and subversion.

When a treaty is negotiated and concluded in more than one language, translation is especially crucial because, if left uncontrolled, it may lead to serious misunderstandings and even significant differences of the texts. Most of the abovementioned treaties were composed in English, and had stipulated that in case of any discrepancies of the translated articles, the English version shall prevail. Sometimes, even the Chinese translations of the treaties were in the charge of foreigners. For example, the Chinese version of the Treaty of Nanking was finished by John R. Morrison, the Chinese Secretary and Interpreter of the Superintendent of the Trade of British Subjects in China. It is inevitable that there are inconsistencies between the two language versions, which will be analyzed in the following sections. Nevertheless, what matters more are the underlying reasons behind the discrepancy and the influences beyond the discrepancy.

II. LEXICON DISCREPANCY IN TREATY TRANSLATION

The translation of Late Qing treaties inevitably involves the terms, phrases and concepts of international law from the West. The massive sentences bearing such information were very new to the Qing government, who had developed its own view of world order. Before we examine the discrepancies between the original treaty texts and the translated versions, we should understand the general translation strategy during this period.

In fact, Western knowledge had already begun to pour into China in the 17th Century, by way of translation and books written by Jesuit missionaries.[16]Translation methods were valued during their practices of translating foreign books on science and technology into Chinese. For example, John Fryer, Xu Shou and Zhao Yuanyi proposed the famous three principles of translation, on the basis of their own translation experiences: first, to search for the corresponding Chinese terms in traditional books of science and technology or the translation works from Late Ming Dynasty to Early Qing Dynasty; second, to coin new terms by means of adding Chinese radicals to existing words, or paraphrase the imported terms when there are no equivalent terms; third, to summarize the newly translated terms and compile them into lists for future references.[17]

Jin Guantao also pointed out when it comes to expressing the newly imported concepts, most of the translations were carried out in a way that gave new meanings to existing Chinese words, for the purpose of matching the modern concepts from the West with original Chinese terms.[18]

The Chinese translation of Late Qing treaties takes a similar approach in adopting traditional terms for lexical innovations and loans with an aim to integrate the imported knowledge into the local language.[19]Translators of treaties tended to search for relevant Chinese terms, and to consider their equivalence or resemblance to foreign terms. On that basis, they would endeavor to use these Chinese traditional terms to translate foreign ones. For instance, article I of the Treaty of Nanking stipulated that,“There shall henceforward be peace and friendship between Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, and His Majesty the Emperor of China, and between their respective Subjects, who shall enjoy full security and protection for their persons and property within the dominions of the other”. “Persons and property” from the source text is translated as “身家(Shen Jia)”.[20]Back then, “Shen Jia” indicated family property, or family itself. Such translation ensured that people of Late Qing would be less unfamiliar with alien words.

Furthermore, translated terms such as bankrupt, full powers, confiscation, real property, the most favored nation privileges, rights, immunities, jurisdiction and advantages, imperial letter, diplomatic intercourse, likin, jurisdiction, cross-examine, high authorities, tonnage dues, custom-house officers and so on,[21]were imprinted in typical Chinese culture; they are mostly subject to traditional Chinese lexicon and concepts, but carrying the knowledge of modern international law.

Nevertheless, if foreign terms imply something unique within their own cultures, or are particular expressions from other different jurisdictions, there will not likely to be proper and parallel Chinese terms for them, because of the potential non-equivalence in terms of their legal systems and norms, cultural backgrounds as well as the knowledge hierarchy; there are no such Chinese terms of exact equivalence. Consequently, there would be multiple versions of Chinese translation for the same legal term, or worse, one single word would mistakenly be the translation for multiple legal terms with distinct implications.

Take the term of Treaty as an example. In the sphere of modern international law, it refers to a written agreement entered into by different actors, namely, sovereign states. It is the crucial source and basic legal form of international law, determining the rights and obligations of the contracting parties. In a broad sense, “Treaty” includes agreement, protocol, covenant, convention, pact, exchange of letters, charter, final act or general act and so on. In a narrow sense, it refers to the international agreements with such word in their titles.[22]However, according to the texts of Late Qing treaties documented in the Treaties and Agreements with and Concerning China, there had been various versions of translation of the term of treaty.

In the Treaty of Wanghea alone, the term of treaty was translated into “Treaty” , “Book of Regulations” , “Regulations and Rules” and“Peace” ; in the Burlingame Treaty of 1868, it was translated into “Treaty” and “Law”. In the Treaty Respecting Commercial Relations, etc., signed by and between the Late Qing and the United Kingdom in 1902 (namely, the Mackay Treaty), the term was translated into “Regulations and Rules” , while the translation of “Treaty” had not yet been fully adopted (See Table 1). Interestingly, the translations of some other terms, which are similar to treaty, were not determined as well. For example, in the 1843 General Regulations for Trade and Tariff at the Five Ports, “the negotiation of treaty” was translated into terms. The titles of commercial treaties were usually translated into “commercial treaties” , “commercial negotiation” and “commercial terms”. By the time of the Treaty of Shimonoseki, the titles of commercial treaties were translated differently; article VI thereof, explicitly stipulated that, the Qing Empire and the Empire of Japan shall send out their representatives as soon as possible for the negotiation of the Treaty of Commerce and Navigation. This is the first time that navigation is used in the title of treaties.[23]

As far as the translation of term “Regulations and Rules” is concerned, it has not only referred to legal systems, procedures, regulations and provisions, but the title of treaties. In the Treaty of Wanghea, the terms, “convention” and “treaty” , were both translated as “Regulations and Rules” ; in the Sino- Danish Supplementary Treaty of Commerce to the Treaty of Tientsin of 1863, the Sino-Russian Treaty of Reformulating Overland Commerce of 1869 and the Sino-Korean Treaty of 1882, the Sino-British Supplementary Treaty to the Chefoo Convention of 1890, the term “regulation” was translated as “Regulations and Rules” ; in the Sino-Dutch Treaty of Tientsin of 1863, the Supplement to the Treaty of Tientsin of 1869 and the Sino-Korean Trade Regulations of 1883, the term “rule” was translated as “Regulations and Rules” as well. Besides, there were more source terms were translated into “Regulations and Rules”. In the Agreement between the Ministers Plenipotentiary of the Governments of the Great Britain and China of 1876 (namely, the Chefoo Convention), the expression “to address a Circular to” was translated into “Defined Regulations and Rules”. In Black's Law Dictionary, the term “circular” now refers to notices, which are legal documents offering suggestions without binding forces; they are subject to non-treaty documents, such as rules, resolutions, guidance, proposals and so on. In the Mackay Treaty of 1902, another implication was given to the term “Regulations and Rules” “. The charter of incorporation or memorandum and articles of association of such company” was translated into “Regulations and Rules Affirmed by Company” (See Table 2). Therefore, in the text aforesaid, the term “Regulations and Rules” implied treaties and conventions in the sense of international law, whose meaning also resembled what it implies in the legal system of modern China. In general, there are countless examples of discrepancy within the terminology translation of Late Qing treaties.

Table 1: The Chinese Translations of “Treaty”

Table 2: The Chinese Translations of “Regulations and Rules”