January 31, 2022
From Legal Form
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The twentieth century began with all of the world’s most powerful states jointly invading and occupying northern China in the name of economic, legal, and civilisational ‘order’.1 In 1899, rural peasants and others at the margins of the increasingly-Western dominated Qing polity rose up to expel foreigners, with sporadic episodes of violence. In the ensuing crackdown, coalition troops used vastly asymmetrical force to crush all opposition, at times killing Chinese civilians at will, among other atrocities left out of Western media coverage. Only about a year after meetings at the Hague to establish the foundations of the modern, humane law of war, the forces of the great powers summarily executed Manchu officials and displayed their heads on city walls. Qing intellectuals protested in vain that such acts violated not only their legal code, but also the West’s own gongfa—that is, public (international) law. Chen Duxiu, later the Communist Party’s first leader, personally recalled a case in Liaoning of Russian troops slaughtering two hundred villagers as they protested rapes of local women.2

This first ‘humanitarian intervention’ of the twentieth century—and the first concrete instantiation of the ‘international community’ formalised at the Hague Conference of 1899—culminated in the 1901 Boxer Protocol that served as a new transnational constitution for the Qing polity. Like other multilateral agreements imposed by Western powers in China, the Protocol not only imposed a vast reparations burden, but also required a restructuring of the Qing state. China would have to reorder its finances (including the already long-since internationalised tariff system), execute key officials, raise the status of the Foreign Ministry, and permit foreign forces to occupy Chinese territory as needed to protect their own states’ ‘interests’.3

Foreign public loans and direct investment, meanwhile, rapidly picked up tempo once more. Reparations payments equivalent to billions in contemporary US dollars would be repaid on the basis of credit extended from Western lenders, secured against the foreign-run tariff system. Further ‘opening’ of China’s market, which the United States above all declared its primary aim, was given a new impetus that was hardly deterred by domestic political chaos and regime changes until the eventual founding of the People’s Republic of China in 1949. China’s modern political organizations, and its international law profession, were formed in a society deeply embedded in global legal hierarchies and relations of economic exploitation.

And yet, the twentieth century would end with China preparing to enter the World Trade Organization, a watershed moment in the ruling Communist Party’s re-embrace of globalization. Though much had changed since 1900, a few important things had not. These included China’s status as a (or even ‘the’) key frontier for the expansion of Western markets. In the interim, Chinese socialists and nationalists of various strains had indeed often sought to challenge the global order built on the base of Western capital and its attendant relations of production.

By the dawn of the twenty-first century, though, China’s political rulers were confident in their ability to integrate into global economic flows and structures, and pursue GDP-focused development at breakneck speed, without thereby sacrificing the state’s sovereignty or security. The rationale underlying these striking dialectical shifts in position, from opposition to reconciliation and identification, is closely connected with the reception of legal concepts.

China in the “Constitutionalisation” of Capitalist Legal Order

The formation of modern Chinese notions of sovereignty and statehood was intimately tied to international legal norms and structures, including those long predating the Boxer episode. The Preamble to the PRC Constitution of 1982 reads, in its second paragraph, ‘After 1840, feudal China was gradually turned into a semi-colonial and semi-feudal country. The Chinese people waged many successive heroic struggles for national independence and liberation and for democracy and freedom.’4 This text embodies the official view that, despite a glorious 5000 years of history, China’s modern history began in 1840 with the crisis—eventually to be transcended by the heroic ‘nation’ as a Romantic protagonist—of the First Opium War.

More significant for the transformation of the Qing polity and its embedding into the ‘world system’ of Anglo-American commercial relations however, was the so-called ‘Second’ Opium War, or Arrow War, of 1858–1860. Systemically unequal economic relations were being continuously reinforced by assertions of dominance in productivity, trading agency, and financial capacity exercised in London and other imperial centres against peripheries, from the North American West to Central Asia, Africa, Australia, etc.5 While these had initially been expressed in China via the series of arrangements now remembered as China’s ‘unequal treaties’, by the 1850s, they came to take on the new form of multilateral treaty arrangements that more thoroughly subordinated their non-Western regulatory objects. The 1860 Convention of Beijing followed closely on the 1856 Treaty of Paris as a major step in the ‘constitutionalisation of international law’—a ‘constitution’ now imposed by the community upon vast non-Western spaces and their soil, water, bodies, and commodities.6

Of course, since its Iberian-Dutch origins, European colonialism had long since involved processes of the sort that Marx described as ‘employ[ing] the power of the State, the concentrated and organised force of society, to hasten, hot-house fashion, the process of transformation of the feudal mode of production into the capitalist mode’.7 However, the shift of state-backed primitive accumulation into a multilateral legal project for regulating non-European spaces reached a new phase in the ‘opening’ of Asia’s closed markets. Only now would the form of international law, and its community of jurists, take up a truly world-historical role in triangulating the shared interests of expanding commercial empires. And, only now as well, would non-Western polities find themselves enlisted as junior partners responsible for carrying out primitive accumulation in their own internal frontier zones.

From 1860 on, the Qing administration was already effectively internationalized as an extension of Eurocentric ‘global governance’. Foreign officials had earlier toyed with the idea of toppling the dynasty or supporting the Taiping rebel movement. Eventually, however, they decided instead to support the Manchu throne, and even proactively assist it in re-establishing its imperium throughout the entire Qing realm, provided that Western dominium rights would now be guaranteed. For example, the post-1860s Qing project of suppressing rebellions among ethnic Muslims in Xinjiang and formally incorporating the vast territory as a homogenized province was aided by loans from British lenders—secured against the tariff regime imposed in the Convention of Beijing—with interest payments collected by Western officials in the internationalized customs service and deposited at HSBC.8 The lessons about Western concepts of state sovereignty imparted by such arrangements were far more vivid than the dry, fairly muddled presentations of the idea in the era’s international law textbooks.

Sovereignty in Place of Agency

The term used for ‘sovereignty’ in today’s China, zhuquan, had a long history before 1840. Originally referring to the ‘authority of the ruler’, it was generally employed in contexts of corrupt ministers usurping imperial power, rather than applied to interstate relations. However, another notion, guoti, was indeed employed in connection with such interactions. Literally referring to the ‘body’, ‘form’, or ‘essence’ (ti) of the ‘state’ (guo), it was often employed to convey notions of the polity’s dignity as well as of its unique ‘national system’. It was this concept that was first used as a metric for appraising Western international law.9

Perhaps best translated in this context as ‘stateliness’, guoti could be interpreted different ways by different actors, but generally stood for both intersubjective forms of recognition—such as following courtly etiquette when receiving the ‘magnanimity’ of imperial officials granting favourable trade terms—as well as, for some of its interpreters, an insistence on the practical autonomy of the Qing state with respect to concrete policy issues. A unifying theme across various usages was Chinese agency in the differentiation of political and social spaces, whether those of the imperial centre, multi-ethnic border zones, or new ad hoc trade enclaves.

By the post-Boxer era and ever since, however, zhuquan—contemporaneously used as a stand-in for the notion of sovereignty as deployed in Western and Japanese international law texts—had almost fully displaced its erstwhile predecessor, which primarily lived on only in an indirectly-related constitutional context. With respect to the global legal order, restoring and preserving state sovereignty had become the sine qua non for China’s engaged intellectuals. While this project has at times meant confronting capitalist structures, as at Bandung in 1955, and at times an attitude of acceptance or (as in recent decades) active embrace, it has invariably been closely bound up with China’s role as a unitary actor in global legal order.

The extremely heterogeneous space of the Qing polity has only slowly been homogenized into an open field of contestation for both Chinese domestic and global capital; indeed, in many ways that process is still far from complete even today. Only by becoming a nation-state after the European mould could China attain some measure of guaranteed legal personality, but it did so at the cost of articulating any alternative political ontology, whether a spatially-delimited guoti or a universal moral / ritual order of ‘all under Heaven’ (Tianxia).

China’s transformation from absolute passivity as an object of legal and economic regulation to attaining the status of an ostensibly equal subject and author of global legal norms has been one key element in the broader story of what Georges Abi-Saab referred to as the ‘transformation of very large parts of the globe, mostly in Africa and Asia, from objects to subjects of international law’.10 Writing forty-two years earlier Zhou Gengsheng, one of the founders of the international law profession in modern China, had expressed in similar terms the way that, along with most of humanity, hitherto ‘[we have] been the objects of international relations [while] Europeans were the subjects of international relations’.11

The history of international law as received in China is in large part the history of legal and political efforts to overcome this status of objectification, or in Marxian terms, reification.12 China’s dramatic transition from peripheral regulatory object of international law to one of its ‘leading’ actors in institutional contexts such as the UN Security Council and the WTO is indeed paradigmatic of a move ‘from object to subject’. But why, then, does China today so often stand for the status quo of international norms and institutions, and articulate in its official positions an almost unwavering commitment to traditional statist positivism? Does overcoming reification in one world order need to look so much like the reproduction of its logic in a new one, with shifts in roles and rules but not underlying relations of production?

Hegemony in an Entrenched World System

Today, although China is often described in the West as the quintessential defender of autarkic sovereignty and a dangerous ‘revisionist’ with respect to liberal international order, it in fact embraces (statist) international law doctrines and institutions in many respects. With regards to rules on the use of force at the UN Security Council, or trade rules as decided upon by the WTO dispute resolution system, among various other issues, Beijing now embraces a statist-capitalist international order almost faultlessly, aside from a few ‘security exceptions’. In some respects, it has indeed been more consistently internationalist than the ‘unilateralist’ United States, which state media now occasionally broach ‘replacing’ in its systemic-core role as China moves ‘ever closer to the centre of the world stage’.13 On matters of force, for example, China has for decades consistently rejected collective security arrangements of the sort that have facilitated US-style erratic, ad hoc interventionism abroad.

Beijing’s absolutist positions on territorial sovereignty with respect to military or political forms of interference rule out most aspects of modern US-style interventionism as well as the earlier, gunboat varieties that China itself suffered during the formative Opium–Boxer sequence. On the other hand, in the realm of economic globalization, Beijing’s practice largely internalizes expansionist market logic like that which drove earlier imperial projects, reproducing a world in which wealth and power flow from peripheries to central elites. Limited counter-trends, such as recent efforts to tamp down unsustainable, debt-driven growth while tightening competition regulations and promoting welfare reforms under the banner of ‘common prosperity’, have served at most to soften some edges of rapid capitalist accumulation, but have done little to change its basic orientation. They do not imply redistribution, nor have they displaced the explicit aim of further market liberalization.

China’s role as the pivotal actor within various overlapping transnational economic regimes, including the WTO system, its own Belt and Road Initiative, and most recently the Regional Comprehensive Economic Partnership (RCEP)—which activated on January 1, 2022 as the world’s largest free trade bloc—has brought its elites into the shared centre of world order. Washington’s national security rhetoric about Chinese ‘debt-trap diplomacy’ and ‘revisionism’ misses the point that it is only by closely emulating existing economic structures, while ‘improving’ on their terms from its partners’ perspectives, that Beijing is able to maintain its position as the hub of structures driven by fickle global commodity flows. Meanwhile such centrality, premised on faithful reproduction, does not confer real agency. The hegemony imparted by global legal, diplomatic, and trade structures is potent, and can turn former regulatory objects into vanguards of structural trends—but not free legislators.14

What ‘China’s rise’ does mean, however, is that understanding this diverse society, its history, and its state apparatus is now as vital to diagnosing the present situation and future transformations of global capitalism as is a concrete understanding of Western life and ideas. It may well come to pass that, as the Italian scholar of political economy and sociology Giovanni Arrighi predicted near the end of his life, China comes to form the centre of ‘an East Asia-centered world market society based on the mutual respect of the world’s cultures and civilizations’ that displaces key aspects of existing North Atlantic hegemony.15 However, ongoing trends suggest Beijing will re-encode most existing dynamics of private exploitation in current market society, even if it palliates some extremes of ‘inter-civilisational’ strife.

No individual polity, human grouping, or financial centre can actually monopolise the totality of today’s globalised relations of production or the ideologies and norm sets they generate. Both Chinese leaders’ triumphalist narratives of ‘national rejuvenation’ and the racial-civilisational neuroses of Western elites fearing displacement should be wholly disregarded. The only pressing question—and it should be regarded as an open one—is whether sufficient intellectual resources and progressive social forces remain in China, as well as other societies, to articulate practically actionable visions of any genuinely alternative future order. Today’s discourses of international law, so closely bound up with the status quo of class relations and economic production domestically and globally, offer few such resources.

Ryan Martínez Mitchell is an Assistant Professor at the Faculty of Law of The Chinese University of Hong Kong. He holds a Ph.D. in Law and Archaia Qualification in the Study of Ancient and Premodern Societies from Yale University (2017), a J.D. from Harvard Law School (2012), and a B.A. from The New School (2007). His monograph Recentering the World: China and the Transformation of International Law is forthcoming from Cambridge University Press.


1 See, e.g. Robert Bickers and R. Gary Tiederman (eds), The Boxers, China, and the World (Lanham: Rowman & Littlefield Publishers, 2007). For a useful overview of China’s role in the geopolitical considerations of Western great powers during the 1890s and in the following decades, see, e.g. Tyler Dennett, ‘Mahan’s “The Problem of Asia,”’ Foreign Affairs 13, no. 1 (1934): 464.

2 Tang Baolin, Chen Duxiu Quan Zhuan [Chen Duxiu: A Complete Biography] (Hong Kong: The Chinese University of Hong Kong Press, 2011), 16.

3 SeeInternational Protocol (1901) in Treaties, Conventions, etc., Between China and Foreign States,2nd ed (Shanghai: Maritime Customs Service, 1917), 301–345.

4 Preamble, Constitution of the People’s Republic of China (1982).

5 On centre-periphery relationships within a hierarchically-structured ‘world system’ as emanating from unequal power dynamics in three distinct but linked dimensions of productivity, trade, and finance, see Immanuel Wallerstein, The Modern World System II: Mercantilism and the Consolidation of the European World-Economy, 1600–1750 (New York: Academic Press, 1980).

6 For an analysis suggesting that this turn to purposive/teleological, multilateral legislation was a more significant epistemic shift than the move ‘from natural law to positivism’ that is usually described in international law histories, see Ryan Martínez Mitchell, ‘International Law as Project or System?’, Georgetown Journal of International Law 51, 623 (2019). ‘Positivism’ per se was fully consistent with a continued derivation of legal norms from the aggregate effects of individual state behaviour (i.e. custom), while the increasingly constitution-like projects undertaken at international conferences after Vienna 1815 and, especially, Paris 1856 marked a dramatic, qualitative shift in the nature of legal regulation within ‘positivism’.

7 Karl Marx, Samuel Moore and Edward Aveling (trans), and Frederick Engels (ed), Capital: A Critique of Political Economy, Vol. I (Chicago: Charles H. Kerr, [1867] 1906), 823–824.

8 Qingdai Wai Zhai Shi Ziliao: 1853–1911 Shang [Historical Materials on Qing Era Foreign Debt, Vol. I] (Beijing: Zhonghua Renmin Gongheguo Caizheng Bu: 1988), 37–52; for vivid parallels between the Qing re-incorporation of Xinjiang and the “civilizing missions” of expanding imperial centres elsewhere, see Eric Schluessel, Land of Strangers: The Civilizing Project in Qing Central Asia (Columbia University Press, 2020).

9 The concept of guoti has received curiously limited attention in modern Sinology, let alone in Western comparative scholarship on political or legal theory. It is, however, somewhat better known in its modern constitutional context referring to the regime type of a polity, particularly by reference to its Japanese equivalent, kokutai, which has largely displaced the term’s originally wide range of meanings in China as well. I review some of the term’s implications and history of usage focusing on the latter context in a recent chapter, Ryan Martínez Mitchell, ‘“State Form” in the Theory and Practice of Constitutional Change in Modern China’, in Rehan Abeyratne and Bui Ngoc Son (eds), The Law and Politics of Unconstitutional Amendments in Asia (London and New York: Routledge, 2021). A more extensive examination of the concept’s pre-twentieth century uses in international law contexts and its impact on changing discourses of sovereignty, statehood, and international order comprises a major portion of my forthcoming monograph.

10 Georges Abi-Saab, ‘The Newly Independent States and the Rules of International Law: An Outline’, Howard Law Journal 8, no. 95 (1962): 97–121.

11 [Zhou] Gengsheng, ‘Zhan Qian Zhan Hou de Guoji Zhengju [The International Situation Before and After the War]’, Taipingyang 2, no. 5 (1920): 1–16.

12 On reification generally, see Georg Lukács, Rodney Livingstone (trans.), History and Class Consciousness: Studies in Marxist Dialectics (Cambridge, M.A.: The MIT Press, 1971) (original publication in German 1923), 83–110. For an analysis that draws connections between the reification of social subjects and the possibilities associated with a given ‘juridico-political order’, see Bob Jessop, ‘Poulantzas’ changing views on law and the state’, in Paul O’Connell and Umut Özsu (eds), Research Handbook on Law and Marxism (Edward Elgar, 2021), 156–172.

13Shijie Gao Hutu Le! Zhe Ji Nian, Zhong Mei Qiaoqiao Huan Le Yi Ge Juese [The World Has Gotten All Mixed Up! China and the USA Have Quietly Switched Roles over the Last Few Years]’, Xinhua, December 27, 2021. (This article was prominently reposted by state media from private WeChat user account Niu Tan Qin).

14 For related reasons, Samir Amin among others has called into question the utility of the notion of ‘hegemony’ at the international level as it is usually deployed: ‘[o]ne cannot quickly jump ahead and say that Asia will be the locus of the next hegemony…In the place of a vague concept of hegemony one could substitute one of an Asia becoming the principal region of capitalist accumulation’. Samir Amin, ‘The Future of Global Polarization’, Social Justice 23, no. 1/2 (1996): 5–13, 11. This useful critique is fully applicable to idealist models of ‘hegemony’ as usually employed in international relations scholarship, rather than to substantive notions of hegemony as dominant class actors’ use of consensus-generation and coercion to reproduce power relations in given social contexts, as reflected in e.g., the thought of Antonio Gramsci or Nicos Poulantzas. Modern Chinese writings on hegemony, whether those critical of its exercise by the United States (as baquan) or favouring its exercise (usually as ‘leadership’: lingdao) by China itself are, similarly, often oriented towards concrete relations such as US use of the dollar as global reserve currency or economic sanctioning practices.

15 Giovanni Arrighi, ‘Postscript’ in The Long Twentieth Century: Money, Power, and the Origins of Our Times (Verso, 1994), 385.




Source: Legalform.blog