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New China and the End of American “International Law”

The question plaguing contemporary analysis of China is what its emergence, or reemergence, as a great power means. To answer this question, we must confront the fact that we have turned, even in China, away from the concept of “great powers”—or even states—in writing the history of modern politics and international relations.

Over the past thirty years, a new historiography called “global history” has emerged in the English-speaking academic community, which has spread far beyond the classrooms of English-speaking countries—even to the academy in my own land, China. “Global history” purported to step outside the old, Eurocentric narratives.

Chinese scholars typically point to William H. McNeill’s The Rise of the West: A History of the Human Community (1963) as the birth of global history.1 This claim is dubious: McNeill himself pledged allegiance to eighteenth-century cosmopolitanism as a “very convincing belief.” “Global history” replaced histories based on the state (the “state standard”) with histories based on human daily life or changing social structures. Yet, in doing so, it did not succeed in stepping outside the Eurocentric view.

A very different global history had already appeared thirteen years prior to McNeill’s work. In 1950 Carl Schmitt created a “glo­bal history” in his The Nomos of the Earth that actually subverted the tradition of “Eurocentrism” in political history.2 Unlike the latest orientation of “global history” research, Schmitt still adheres to the state standard as the basis of political history, yet undermines Eurocentrism all the same. How is this possible?

“Global history” takes daily life as its standard for judging historical currents. The premise of this orientation seems to be that bloody wars for global dominance have ended among European civilization, and the era of “global citizenship” is about to come, just as liberals have expected. Even if that era never seems to come, liberals insist on fighting against any forms of the state standard, including parliamentary democracy, and raise the flag against “Euro­centrism.” But in dismissing the state as its focus, “global history” ended up simply globalizing the daily life of Western liberalism.

The reasons for neglecting Schmitt’s global history are easy to see. Schmitt relies on the state standard yet at the same time leaves behind Eurocentrism. Schmitt begins from a premise now more palpable to us than the presuppositions of global liberalism: that conflict among the superpowers hasn’t ended at all, and is instead expanding to a global scope. Although the history of the world after 1500 was the era of the rise of Europe, the end of that era is only the termination of “Eurocentrism,” not of conflicts concerning the state.

In the turn to social history as well as social sciences that deem­phasize the state, we simply express our belief that “world citizenship” will eventually emerge from the liberal order. But what if the real outcome is different—what if the “social” ideal is simply a utopia, while interstate warfare remains frequent and intense?

With the rise of China firmly outside the liberal context, yet characterized by a strong state, Schmitt’s account takes on a new importance as the explanation for this unexpected transformation, and its consequences.

International Law and Global Demarcation

As a classic of “global history,” Schmitt’s The Nomos of the Earth concentrates on the formation of European international laws and their historical transitions. If “Eurocentrism” is to be regarded as something more than a conceptual abstraction, European international law could be seen as its specific instantiation. And yet for Schmitt, the orders based on international law were already collapsing.

To understand Schmitt’s contribution, we have to grasp two key points. First, the Columbian discovery and occupation of the West­ern Hemisphere exacerbated the conflicts among European Christian monarchies, thus giving birth to European international law. The European nations extended their local conflicts to the Western Hemisphere, fighting against each other for the occupation of land in the Americas. Second, the rise of the United States, an independent sovereignty outside Europe, led to the decline of European inter­national law. The end of “Eurocentrism” or the rise of “globalism” might as well suggest the rise of “U.S.-centrism.”

It was the discovery of the Western Hemisphere that initiated a global demarcation of the lands of the earth. “The division and distribution of the earth,” Schmitt wrote, “increasingly became a concern of peoples and powers existing in close proximity. Lines were drawn to divide and distribute the whole earth. These were the first attempts to establish the dimensions and demarcations of a global spatial order.”3

Europeans noticed “a gigantic, unknown and non-European area,” and tried to occupy and conquer this new area. Hence Schmitt brought out his main argument: “Most essential and decisive for the following centuries, however, was the fact that the emerging new world did not appear as a new enemy, but as a free space, as an area open to European occupation and extension.”4 The New World was not an enemy to be confronted on balance-of-power terms, but an open space to be divided up among European powers. Inside Euro­pean space, the balance of power prevailed; across the line on the outside was space free for the taking.

European international law was born to pacify the conflicts aris­ing from tensions over the newly discovered continent among Euro­pean states. The Treaty of Tordesillas in 1494 was just the beginning of such pacification, and the number of the treaties among European states increased further due to the escalation of wars. Therefore, in a practical sense, the formation and development of European inter­national law were mainly designed to restrain wars among European Christian monarchies.

Demarcating the State of Nature

The geographic discovery of the New World lasted for almost three centuries, beginning with the overseas competition between Spain and Portugal. Spain and Portugal occupied South America, controlled the shipping routes, and prohibited other states from using them. Therefore, England and France had to discover new paths to the lands opened by Columbus from the north, northwest, and northeast sides. They ended up making further new discoveries—the vast continent from the Caribbean Sea to the Pacific to the Arctic—and they started to colonize these regions.

After 1632, the rise of England and the Netherlands challenged the hegemony of Spain; they took over its shipping routes, and initiated a trade war for the control of Asia. This period lasted until the first thirty years of the eighteenth century, after which European kingdoms dominated the Americas and Asia.

Thus, for Schmitt, the actual start of the New World was not 1492, but Pope Alexander VI’s determination of the “Papal Meridian” on May 4, 1494, resolving the conflicts between Spain and Por­tugal. Even more precisely, the New World began with the Treaty of Tordesillas one month later. With this treaty, says Schmitt, the divi­sion of the seas between Spain and Portugal redefined the oceans as territory, like the continents themselves—an area to be explored and controlled, not an area outside dominion.

As a supplement to the Treaty of Tordesillas, Spain and Portugal signed the Treaty of Zaragoza in April 1529, setting the demarcation line which crossed East Siberia, Japan, and the center of Australia. This line has vital importance not only in Schmitt’s arguments con­cerning Europe, but also in discussions of China. The 1529 line is very close to China, and the regions around it are still a shattered zone in geopolitical discussions.

Schmitt points out that the creation of these boundaries, intended to restrain European powers’ behavior toward each other, also created “free zones” within which the European powers were un­constrained. Thus the boundaries established by European international law suggested that there is a boundary of justice, kindness, and truth: “in certain areas Christian princes and peoples had agreed to disregard the distinction between justice and injustice.” So in those areas, so-called freedom is just a state of nature without any moral restraint. European people are only civilized men in their “home,” but barbarians in the outside world.

For Schmitt, so-called international law was nothing but a set of internal orders for European states. For example, Spain had “occa­sionally asserted that otherwise valid treaties did not hold in ‘India,’ because this was a ‘new world.’”5 Among European states, wars were to follow “international law,” but European states did not need to respect the rules when they were in conflict with someone outside their circle. Hence, when the Anglo-French Allied Force entered Beijing, they felt entitled to burn the Old Summer Palace, but the French would never do the same in Vienna, even after they won a war.

The American Transformation of European Hegemony

Only with the entry of the United States into World War II did this period of European dominance come to an end. The rise of the United States, originally born from Europe, introduces in and after World War II a demarcation contest with European states. And in­deed, from the Cairo Declaration to the Yalta Agreement, the United States and the USSR directed the new round of the demarcation of the world.

Schmitt, moreover, seeks to show that the creation of the United States and its growth are the results of its embrace of the law of the jungle in the state of nature. The United States was born in the “free zones” defined by Europeans, where the restrictions of international law did not apply, and the United States officially claimed a separa­tion from Europe at its founding. Shortly after “millions of disappointed and disillusioned Europeans left old, reactionary Europe behind and migrated to America,” however, the United States turned itself to the “era of open imperialism” by exploiting the opportunity of the Spanish-American War of 1898. After the Spanish-American War, the United States reentered the civilized European world and brought barbarian and lawless habits back to Europe. The concept of discriminative and total war therefore appeared within Europe in World War I, and the era of European dominance began its decline.

The “global order” since the end of the nineteenth century is in fact the globalization of the European order of international law. But the two world wars showed that the distribution of power within Europe now involved two new, non-European elements: the United States in North America and China in East Asia. With those additions, European internal relations expanded to global internal relations. (Russia, of course, straddling Europe and Asia, had already taken up its role in the European order during the eighteenth cen­tury.)

The evolution of the global order after the nineteenth cen­tury should thus be divided into two stages: the first stage is the world wars and their culmination in the Cold War; the second stage is the collapse of the Soviet Union and the rise of China.

The change introduced in the first stage—by America’s entry into the European system—was to replace “legal warfare” with “discrim­inatory warfare,” according to Schmitt. Wars between European powers, formerly bound by European international law or confined to a military conflict, became ideological wars. Previously, both sides of the war fought for the acquisition of space. But now the victor declares that the defeated party is a criminal in the most extreme sense of the term. It is as though the major European countries were originally a group of robbers, fighting for space on the surface of the earth. In the course of the fight, a set of gentlemen’s agreements emerged among them in the name of “humani­tarianism.” Beginning with World War I, however, the defeated party would be treated as the robber, whereas the victor became the “international police.”

What this transformation accomplished, in effect, was to change the locus of “free space” from a geographical area outside Europe to a condition that could be imposed upon opponents in ideological conflict. On the one hand, this shift marked the beginning of the end of “Eurocentrism.” But, on the other, it made a country’s status under international law even more dependent upon power projection. In this way, the United States brought the law of the jungle back to Europe.

Despite this shift, in Schmitt’s view, the relationship between the United States and Russia during the Cold War still continued the tradition of dividing the world along European-style “amity lines.” The fundamental problem remained the same as in the sixteenth and seventeenth centuries: “there was neither a recognized principle nor a common arbitrational authority to govern the division and alloca­tion of lands.”6 Stability in great power relations was maintained only as long as the balance of power held.

International Law and the Balance of Power

It is in a discussion of the concept of “balance of power” that Schmitt refers to China for the first time in Nomos of the Earth, a book in which China is barely mentioned. For it is precisely this issue that shaped China’s encounter with European (and American) international law in history.

Why is there no international concept of “balance of power” in the ancient geopolitics of Asia, or why was there no European-style war between Asian countries before the Europeans arrived? To grasp this, consider the unique emphasis placed on the “balance of power” within the history of relations among European powers.

The “balance of power” is effectively the balance between the great powers. Who, then, is a great power? Outside the group of great powers there lies only “free space,” so this is a critical question. In the medieval period Schmitt recognizes the Holy Roman Empire alone as a great power, but after the Reformation it can be said that the concept of “balance of power” becomes the dominant concept of the modern European order. In other words, European order re­gressed from a state of civilization to the barbaric state of “Shang Li” (尚力, advocating power/strength).

Becoming a great power, therefore, simply means being recognized as a great power by the other great powers. In this respect, international law acknowledges the barbaric law of the jungle. A “great country” is simply one that has the military power necessary to establish its own borders. But European international law hides this fact behind treaties and legalism, and makes the jungle law of “predatory war” seem civilized. This proved especially problematic in the history of China.

“Recognition of Japan as a Great Power is dated to [the Sino-Japanese war of] 1894,” writes Schmitt, “as well as to 1904–05, following the Russo-Japanese War. Thereafter, both wars, which Japan won, were seen by the European Great Powers as reception parties for Japan’s entrance into the narrow circle of the Great Powers that sustained international law, whereas in the Japanese view the pivotal event was their participation in the punitive expedi­tion of the Great Powers against China (1900).”7

China’s conquest was the means by which Japan became, at least in its own eyes, a great power by the standard of European law. Even for European international law jurists, the Sino-Japanese War on its own, without the Russo-Japanese War, was sufficient to prove that Japan deserved to be a European-style power.8

The Lessons of International Law for China

Unlike Japan, which entered the European order as a great power after its conquests, China was forced into it without becoming a great power. It remained a “free space” subject to the designs of others. Stated another way, Schmitt said there are two ways for an Asian country to join the modern European system of international law. The first way is “unpolitical and technical,” such as accession to the Universal Post Union. China had recognized this form of Euro­pean international law, according to Schmitt, since the 1880s. The second way is political, which is accession through predatory war­fare. The first does not make for real membership in the international balance of power; the second was not available to China—until after the revolution.

Just as the New World had been a free space from the standpoint of European powers, after the Boxer Rebellion Chinese territory was “preserved” by the United States through its Open Door Poli­cy. For the new and old powers, it was better to divide China by economic means than by force. Thus, after the Boxer Rebellion, China was characterized as a “barbaric state” or a “semi-open country,” and a series of discriminatory treaties were implemented, such as most-favored-nation treatment, consular jurisdiction, and tariff agreements.

The moral validity of a treaty depends on two conditions: first, whether the formal procedure to conclude a treaty treats the parties equally; and second, whether the content of a treaty undermines China’s sovereignty. These two conditions are ambiguous, and their formulation lacks the certainty of legal rhetoric. The limitations of such an approach notwithstanding, according to these two conditions there have been 736 treaties between China and foreign coun­tries since the nineteenth century, of which 343 are typically recog­nized in China as unequal treaties, involving 23 countries.

The concept of “unequal treaties,” of course, refers not to a legal status (treaties concluded under duress being perfectly binding), but points rather to the righteousness of denying the validity of the un­equal treaties. The treaty between countries is like a contract made when under coercion: when one gets rid of the coercive condition, one seeks to abolish the contract. In other words, a treaty only reflects the temporary situation between countries.

In the early twentieth century, the Republic of China promoted “revolutionary diplomacy” in order to abolish what it thought were “unequal treaties.”9 But the mistake China made at the time was to assume that international law would be applied equally in its favor, even though it was not yet a great power. At the time when North China was in danger in 1935, for example, the German general Alex­ander von Falkenhausen (1878–1966), head of the German military advisory group hired by Chiang Kai-shek, repeatedly warned about Japan’s obvious intention to divide China by military means. China, he said, should not expect other powers to stop Japan.

Chiang Kai-shek, however, did not listen to Falkenhausen, and still expected Britain, the United States, and France to intervene with Japan because of their interests in China. Even after the invasion of North China by the Japanese army on July 16, 1937, Chiang Kai-shek still hoped to hold peace talks with Japan in order to wait for the intervention of the League of Nations. Although we cannot say that Chiang Kai-shek had no patriotic sentiment, we can say that his political acumen was unbelievably low. At the cost of hundreds of thousands of lives, Chiang Kai-shek taught the Chinese a bloody lesson in understanding the European international law system. If Japan had not subsequently attacked the United States and seized American colonies, Britain and France would have accepted Japan’s occupation of Northeast China, and Puyi would have remained the (coerced) emperor.

In 1945, when the wartime government of China and the Soviet Union signed the Sino-Soviet Treaty of Friendship and Alliance, which was detrimental to Chinese sovereignty, Chiang Kai-shek sent Chiang Ching-kuo to join the delegation in the Soviet Union in order to show amity. One day, Stalin invited Chiang Ching-kuo to his private residence for conversation. He told Chiang Ching-kuo that the Soviet side insisted upon keeping the interests in China inherited from Czarist Russia, because the Soviets wanted to prevent China from invading the Soviet Union. Chiang Ching-kuo responded, “How can China invade the Soviet Union? There has never been such a thing in history. We can conclude a treaty that China guaran­tees that it will never invade the Soviet Union.” Stalin smiled and said: “Today is a private occasion, so I will tell you frankly that all the treaties are waste paper, but everything speaks with strength.”

We have to admit that Stalin had a better grasp of the spiritual essence of European international law than most jurists and histori­ans. Stalin also had a famous saying: “Now, where a country’s army is, there is its border.” European international law is rephrased concisely and accurately in this famous saying. In Stalin’s view, the statement of “unequal treaties” in modern Chinese history books is not an exaggeration.

At the beginning of the twentieth century, there was a Chinese student studying in Japan named Qin Lishan. He naïvely believed that the cornerstone of Western civilization was the order of inter­national law rather than “the law of jungle.” Huang Qun (1883–1945), however, who was also a student studying in Japan, wrote a more perceptive article in the New World Journal (September 1902) criticizing international law. In theory, he said, international law is based on the equality and autonomy of countries, but the problem is that the strength and weaknesses of countries are actually different, and thus the international status of each country is unequal. The so-called civilized states of the West are actually powerful countries. For them, to conclude a treaty is to bully a weak country. Inter­national law has no actual binding force: Egypt died because of Britain and France; India died because of Britain; and Poland died because of Russia. Once people forget this fact, they will fall into unnecessary academic debates.

The primary lesson of European international law for China is that China must first be a truly sovereign state in order to be an equal participant, and state sovereignty can only be obtained by military power. This is the basic foundation on which China can enter the European system of international law.

China and the United States Today

Schmitt says that, since the founding of the United States, America has always adhered to a national policy of isolationism, separating itself from Europe. By moving westward, however, the United States eventually moved toward the East—as Schmitt put it, “deep into the Pacific Ocean and into the old East.” In fact, in 1930, Schmitt notes that “under the rubric ‘rise of a new world,’ it was suggested that America and China should unite.”10

According to the Treaty of Zaragoza in the early sixteenth cen­tury, Portugal gained control of all the islands and sea areas to the west of the papal demarcation line, including the whole of Asia and its neighboring islands, and Spain gained almost the entire Pacific Ocean and space eastward. Since the treaty did not mention the Philippines, Charles V took the opportunity to announce the coloni­zation of the Philippines in 1542. At the end of the nineteenth century, the United States seized dominance over the Philippines from Spain by force. If Philip II changed the demarcation for the first time by virtue of naval power, the second change was when the United States used force to take the Philippines from Spain.

Today, just as in the sixteenth century, the worlds of West and East still meet at a line of demarcation, not the “Papal Meridian” but the one set by the Soviet Union and the United States at the end of the Korean War. The Soviet Empire and the American Empire di­vided the world, and then for a time became the allied opponents of any further redivision, and this process of global demarcation brought about a new balance of power—the Cold War.

From the view of the modern history of China, the Korean Peninsula War is the new China’s first answer to the Open Door declaration of the late nineteenth century: Americans are not al­lowed to cross the thirty-eighth parallel.

The second answer to the nineteenth-century Open Door Policy was the Chinese economic reform of the 1980s. The United States and China have once again become connected, but the meaning of “openness” has completely changed. Now the host itself has opened the door and invited outsiders to come in to engage in joint ventures, which is different from when the outsiders forced the door open and imposed extraterritorial control. Whereas China in the nineteenth century was turned into a “free space” and divided by economic means, the new China has used economic means to attain great power status.

China’s New Law of the Land

Twelve years after the publication of The Nomos of the Earth, Schmitt published Theory of the Partisan, which discusses how China had been dragged into the global order of the twentieth cen­tury.11 Although Schmitt did not foresee the rise of China, he was prescient enough to conclude that the Chinese revolution would usher in a new law of the land and disrupt the global order of the European era even more fundamentally than the rise of the United States.

In today’s international context, through the lens of Schmitt’s interpretation of international law, the United States has every rea­son to worry about the relationship between itself and emerging East Asia. Just as old Europe was excluded from the Eastern Hemi­sphere after the rise of the United States, the United States could be squeezed out of Asia as a result of China’s rise. China’s arrival as a great power challenges the “free space” delineated by the United States. China now has the power to participate in global demarcation, and it seems inevitable that this kind of participation will con­flict with the desires of the United States.

But the rise of China might also change the shape of international law in a more fundamental way. China has learned the lessons of European international law, and is now able to take its place within it as a great power. Yet this does not mean that China wishes to participate under the old terms.

The rise of China in the history of the world is related to the eastward spread of Marxism. It is also connected to the traditional virtue of Chinese civilization. In fact, as early as the beginning of 1946, Mao Zedong had “taken off the shackles of the post-war major power system, established an independent strategy toward the United States, and no longer considered the Soviet Union’s attitude and interests to be in an important position.”12 This means that the rise of China has brought a new “law of the land” to the East. The introduction of this new law of the land can be understood in terms of Hegel’s rejection of Hobbes and Locke’s capitalist law of the land.

Schmitt referred to “the structural relation between Hobbes’ concept of the state of nature and the sphere of ruthless freedom existing prior to the state.” When Hegel rejected Hobbes’s philosophy, he made an extraordinary diagnosis of the structure of the United States. The United States had not yet emerged into a state, he argued, and was still, as Schmitt put it, “in a pre-state condition of the freedom of interests that precedes the state’s dialectical overcoming of the concept of every man for himself.” Schmitt also noted that the young Marx made a similar evaluation of the United States. Marx said that, “as in 19th century monarchies, republics, too, had defined the constitution and the state in terms of bourgeois property.”

What then will the new nomos of the globe look like? In Theory of the Partisan, Schmitt quoted a few verses from a poem which had been written by Mao Zedong in October 1935:

If heaven were my garrison, I would draw my sword
And strike you into three pieces:
One as a present for Europe,
One for America,
But one left over for China,
And peace would rule the world.13

Schmitt rightly understood the meaning of these verses. Although human beings live together on the same globe, it must still have large spatial areas (Großräumen) which can achieve a kind of balance through rational deliberation. That is, in fact, what European inter­national law said that it was doing, all the while it continued to per­petuate a lawless state of nature. It is this dynamic which “global history” has blinded us to, both in the West and the East. Global history assumed that American liberalism would spread across the world, turning the entire globe into a “free space” where a pre-state law of the jungle would prevail.

With the growth of an independent China, however, the United States will face an inevitable choice: either to withdraw from the spaces that were acquired illegitimately, or seek to relentlessly main­tain its global hegemony.

This article originally appeared in American Affairs Volume III, Number 3 (Fall 2019): 155–68.


Notes

1 William H. McNeill, The Rise of the West: A History of the Human Community (New York: Mentor, 1963).

2 Carl Schmitt, Der Nomos der Erde im Völkerrecht des Jus Publicum Europaeum (Berlin: Duncker and Humblot, 1950), translated by G. L. Ulmen as The Nomos of the Earth in the International Law of the Jus Publicum Europaeum (New York: Telos, 2006).

3 Schmitt, Nomos, 86.

4 Schmitt, Nomos, 87.

5 Schmitt, Nomos, 93.

6 Schmitt, Nomos, 100.

7 Schmitt, Nomos, 191.

8 Cf. Qi Qizhang: The Sino-Japanese Ware from the Perspective of International Law (Beijing: People’s Publishing House, 2000).

9 See Wang Jianlang, The History of China’s Abolition of Unequal Treaties (Nanchang: Jiangxi People’s Publishing House, 2000); Wang Dong, China’s Unequal Treaties: National Shame and National History Narrative (Shanghai: Fudan University Press, 2011).

10 Schmitt, Nomos, 292.

11 Carl Schmitt, The Theory of the Partisan: A Commentary/Remark on the Concept of the Political, trans. A. C. Goodson (East Lansing, Mich.: Michigan State University Press, 2004).

12 Kuisong Yang, Revolution in the “Heartland”: The Success of the Chinese Communist Party in the International Context (Taiyuan: Shanxi People’s Press, 2010), 517.

13 Schmitt, Theory, 41, from the poem’s translation by Rolf Schneider.

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