RYAN MARTÍNEZ MITCHELL*

Writing in 1950 about the Second Hague Conference of 1907, Carl Schmitt remarked on the event’s completely different “atmosphere and ambience” as compared with its predecessor. The first conference of 1899 had been, for all intents and purposes, “still purely European” (noch rein europäisch). But when its successor was convened eight years later, “those who ought to have been carried out the door now already stood before it” (die Füße derer, die sie hinaustragen sollten, standen schon vor der Tür).^[1] For Schmitt, this was evidence that the erstwhile “public law of Europe” had by then already fallen into an irreversible trajectory of decline.

Another comment on the conference, touching on its significance in strikingly similar terms but from a completely different standpoint, was that of the Chinese diplomat Lu Zhengxiang (a/k/a Lou Tseng-Tsiang), who had gone to the First Hague Conference as a junior delegate before serving as the co-head of the 1907 Qing delegation. Subsequently reflecting on the experience in January 1908, Lu wrote in a memorial to the penultimate Qing Emperor that “there was an invisible atmosphere among the delegations to the effect that, while there has been an ‘American faction’ and a ‘European faction’ [at the Hague conferences] there was originally no ‘Asian faction’; however with the emergence of the topic of extraterritorial consular jurisdiction, the Persian and Siamese delegates were closely aligned with us, and so an ‘Asian faction’ was formed during the meetings.”^[2] Going forward, Lu and other diplomats suggested, China should both modernize and seek to build on this nascent solidarity by working with other weak states towards goals such as abolishing extraterritorial consular jurisdiction and reclaiming policy autonomy.

In my recent article on China’s participation at the Second Hague Conference, which appears in the Asian Journal of International Law, I examine in detail the early expressions of Third World solidarity at the conference as well as the event’s impact on China’s domestic legal initiatives. While coalition building with other weak states did not advance much in the near term, work towards China’s own construction of a “modern” nation-state along the lines of Meiji Japan was greatly accelerated by its up-close encounter with Great Power international legal rulemaking in 1907.

The notion of establishing an “Asian faction”—yazhou zhi pai, also translatable as “Asian school”—in international law settings was still quite novel when Lu made this proposal. The international law field as a globalized profession or “invisible college” engaged in continuous activities of research, legal practice, and self-reproduction was itself a recent phenomenon.^[3] Meanwhile, explicit Eurocentrism was a central organizing idea in the self-constructed identity of the field, and a major part of its growing imprint on politics and intellectual life in the West. While some international law advocates put more emphasis upon shared Christian heritage and values, and others upon the extension of free markets,^[4] cosmopolitan duties,^[5] and political liberalism, the general consensus of the field’s leaders had by the 1870s coalesced around a “standard of civilization”—defined largely in terms of obedient acceptance of Western economic penetration and religious proselytism—as the metric for membership in the global community.

The extension of international law ideas and structures to East Asia had been carried out in large part via what would later be called “unequal treaties”: agreements with asymmetrical obligations imposed through the use or threat of force. By the time of the First Hague Conference in 1899, however, Meiji Japan had managed to overcome most of the formal features of subordination. This had been accomplished by the rapid adoption of Western legal, political, and commercial forms, along with the extension of geopolitical power—at China’s expense, particularly after the watershed First Sino-Japanese War of 1894-1895 founding Japan’s claim to Great Power status on terms approaching parity with the West.^[6]

By the time Lu made his suggestions for Asian solidarity in 1908, he could only note with regret that the opportunity for cooperation on equal terms with the rising Great Power Japan had been missed decades earlier. A yazhou zhi pai at meetings like the Hague Conferences would thus have to operate, at least for the time being, in competition with Japan’s influence as well as that of Western powers. Yet both the exigencies of domestic state-building and the limitations of international legal forums would get in the way of such efforts.

Lu’s reflections long predated the era of post-World War II decolonizations that gave birth to what has been described as the first generation of “Third World Approaches to International Law” (TWAIL) as a movement and polycentric professional network. The explicitly Eurocentric global international law profession of his time was not amenable to such initiatives. Even in China itself, moreover, such ideas would largely fade in relevance by the interwar period, as competing domestic regimes became ever more reliant on foreign (Western, Soviet, or Japanese) backers for arms and credit. In the wake of the Paris Peace Conference of 1919-1920, moreover, Japan turned towards explicit emulation of the United States’ Monroe Doctrine as a model for local hegemony, thus further associating discourses of pan-Asianism with its own aspirations to dominance. As I detail in an article recently published in the TWAIL Review, these efforts put Chinese diplomats and lawyers on the defensive against regionalist initiatives, a stance they would maintain for decades, despite sporadic interest in a broader solidarity agenda.

Only after the world had been transformed both materially and ideologically by the end of the Second World War and the beginnings of both the Cold War and the era of decolonizations would Chinese officials truly return to regional aims. While Chinese delegates at the Dumbarton Oaks Conversations and San Francisco Conference founding the United Nations emphatically defended both sovereign equality and cosmopolitan institutions such as the International Court of Justice, internal proposals regarding possible initiatives such as a “Pacific Charter” or even a “United Nations of the Pacific” (Taipingyang Lianheguo) ultimately never saw the light of day. In a monograph forthcoming with Cambridge University Press, Recentering the World: China and the Transformation of International Legal Order, I detail these and other episodes in Chinese engagements with international law since the 1850s.

As the book shows, the most proactive pursuit of Third World solidarity undertaken by a Chinese government was the process by which Zhou Enlai and Jawaharlal Nehru in 1954 developed the “Five Principles of Peaceful Coexistence” framework that soon formed the basis for the Final Communiqué of the Asian-African Conference at Bandung. Though a moment of great historical and intellectual importance, Bandung, too, would ultimately prove to be limited in its capacity to produce systemic alternatives to Eurocentric legal order. Especially after China itself “returned” to both Western legal forums and global capitalism, from 1971 and 1978 respectively, its erstwhile revolutionary role was largely cast aside.

Today, as China launches vast initiatives of trade and investment it largely replicates extant practices and relations of production and exchange,^[7] rather than overturning them. The contributions to a recent symposium on China and the International Legal Order coordinated by the Harvard International Law Journal, Yale Journal of International Law, and the organizers of the University of Oxford’s “China, Law and Development” project, for example, detail various aspects of this growing position of centrality and (conditioned) agency.

Returning to the Second Hague Conference, we might ask: Were early expressions of non-Western organization and solidarity like those of 1907, then, little more than “dead circuits” or “non-events”?^[8] Certainly, Lu’s actual proposal was to have few practical consequences in terms of international law doctrine or structures. Nonetheless, the experiences of 1907 and other such moments marginalized in traditional Western international legal history are worth studying for a number of reasons. China’s role at the Second Hague Conference was of course important as an early tactile encounter with international law and its possibilities that pointed in the direction of the above-mentioned, later Third World developments.

Meanwhile, the event also marked a genuine, practical shift in which relatively weak and “minor” powers in general began to exert meaningful checks on the projects of Great Powers and their legal architects. At the Hague, Lu’s delegation had mainly joined with Latin American states to oppose the novel, hierarchical great power initiatives in these areas. Together, they had struggled against hierarchically-conceived innovations such as a permanent international court whose judiciary was to be organized along lines explicitly intended to reflect relative geopolitical power. The shared commitment to a more robust sense of sovereign state equality emerged early on as a common denominator for Latin and Asian (and, later, African et al.) states’ ambitions in reforming global order.^[9]

However, it is also precisely in this aspect that this early experience shares with much later iterations of TWAIL features that some in today’s TWAIL milieu find troubling. First, as noted, both the rhetoric and the practical proposals introduced on behalf of this “resistance” of marginalized actors were firmly centered on the rights of sovereign states. Statist positivism, with its various implications for internal power hierarchies and modes of economic relations, was not challenged as such. For some TWAIL writers today, embrace of a purportedly “Eurocentric epistemology” of statehood precludes real resistance to Eurocentric legal order.^[10] Second, although the Asian-Latin American (and some European) “weak state” delegates did manage to defeat several isolated proposals of the great powers, they did not manage to turn this moment of coalition into any lasting organizational forms of influence on international law’s future development. A recurring lack of real-world impact, or at least failure to realize grandly-conceived initial objectives, has not infrequently been reiterated in Third World legal projects ever since.

The mixed legacies of events like the Second Hague Conference, Versailles, San Francisco, and Bandung all raise questions of necessity versus contingency. Were delegates of marginalized states fated to rely primarily on the notion of state sovereignty to articulate resistance to great power hierarchies? Or, could some other common ethos and nexus of cooperation, such as a more robust notion of self-determination, have been equally effective? Could early moments of solidarity like that of 1907 have turned into more lasting forums and institutions, if not for interruption by wars and revolutions? These and other counterfactuals emerge naturally from a close consideration of these key transitional moments in the history of international legal order.

While explorations of China’s international legal history cannot definitively answer these questions, I believe that TWAIL scholars and others interested in overcoming the inherited Eurocentric frames of international legal thought and practice (or aspects thereof) may benefit by further pursuing them. Meanwhile, rather than dwelling on 1907 or any other contingent episode as a sentimental “founding moment” for Third Worldism, I hope that, by studying in context the prototypes and early expressions of later causes, critical international lawyers today can better understand our own “atmosphere and ambience” in terms of its diverse genealogies and, perhaps, similar difficulties being translated into action.

What might it take for those “who ought to be carried out the door” of today’s global legal order—states outside of the remnant developed-world Cold War security alliances, indigenous peoples, the global economic precariat, victims of built-in inegalitarianism in today’s structures for managing world trade, health crises, climate change, et al.—not just to make sporadic, conditional entries through that door, but rather tear it from its hinges?

[1] Carl Schmitt, Der Nomos der Erde im Volkerrecht des Jus Publicum Europaeum 205 (1950).

[2] Zhongguo Di Er Lishi Dang’an Guan 中國第二歷史檔案館, Lu Zhengxiang Chuxi Haiya Baohehui Zouzhe Liangjian 陸徵祥出席海牙保和會奏摺兩件 [Two Memorials of Lu Zhengxiang Regarding Participation at the Hague Peace Conference], Minguo Dang’an 民國檔案, no. 2, 2000, at 37–42.

[3] See, e.g., Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 71–73 (2001); cf. Martti Koskenniemi, To the Uttermost Parts of the Earth: Legal Imagination and International Power 1300-1870 965–67 (2021).

[4] See Ntina Tzouvala, Capitalism as Civilisation: A History of International Law 56–67 (2020); cf. Gerrit W. Gong, The Standard of Civilization in International Society (1984).

[5] See, e.g. Andrew Fitzmaurice, King Leopold’s Ghostwriter: The Creation of Persons and States in the Nineteenth Century 420–434 (2021).

[6] On 1895 as a turning point specifically for the institution of extraterritorial consular jurisdiction in Sino-Japanese relations, see Pär Kristoffer Cassel, Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteenth-Century China and Japan 160 (2011).

[7] For an argument that international law should be studied as a reflection of and means of regulating relations of production (rather than either morally fetishized or nihilistically condemned as a mere smokescreen for power relations), see generally Bhupinder Singh Chimni, International Law and World Order: A Critique of Contemporary Approaches (2nd ed., 2017).

[8] Compare Fleur Johns, On Dead Circuits and Non-Events, in Contingency in International Law: On the Possibility of Different Legal Histories 25, 40–58 (Kevin Jon Heller & Ingo Venzke eds., 2021), with Samuel Moyn, From Situated Freedom to Plausible Worlds, in Contingency in International Law: On the Possibility of Different Legal Histories, supra, at 517, 532–41.

[9] Arnulf Becker Lorca, Mestizo International Law: A Global Intellectual History 1842-1933 158–68 (2014).

[10] See, e.g., Mohsen al Attar, Subverting Eurocentric Epistemology: The Value of Nonsense When Designing Counterfactuals, in Contingency in International Law: On the Possibility of Different Legal Histories, supra note 8, at 145, 160–76. For a perspective focusing on how the state, like other legal forms, can serve as a site of “relative autonomy” reflecting struggles over agency and distribution between social actors, see Umut Özsu, The Necessity of Contingency: Method and Marxism in International Law, in Contingency in International Law: On the Possibility of Different Legal Histories, supra note 8, at 60, 75–92.

[hr gap=”30″]

* Ryan Martínez Mitchell is an assistant professor at the Faculty of Law of the Chinese University of Hong Kong. He holds a B.A. from The New School, a J.D. from Harvard Law School, and a Ph.D. in Law and Archaia Qualification in the Study of Ancient and Premodern Societies from Yale University. His research focuses on the history and theory of international law, legal history, and Chinese law, and is reflected in publications in a number of leading academic journals. His monograph Recentering the World: China and the Transformation of International Legal Order is forthcoming from Cambridge University Press. He is on Twitter @zeguoqiang