The issue of economic sanctions has become a near routine aspect of the contemporary news cycle. While many such regimes are now decades old, the enactment and modification of sanctions has become the most pervasive form of coercion practiced among modern nation-states. In his article Economic Sanctions as Legal Ordering (hereinafter ESLO), J. Benton Heath confronts the contemporary normalization of sanctions with a decisively unsettling transnational intervention: the role of early 20th century Chinese consumer boycotts in stimulating many elements now taken for granted in modern sanction regimes. In recovering the force of this neglected precedent, Heath helps us better understand what is and isn’t new about the recent intensification of economic sanctions while also providing a powerful example of the increasingly undeniable necessity of transnationalizing how we understand the origins of contemporary international legal developments.
Heath’s central argument in ESLO is that the largely civil-society-led Chinese consumer boycotts that emerged at the beginning of the 20th century were what he calls an “insurgent legal ordering.” This insurgency was organized beyond the bounds of what the modern international legal order took to be its unit of analysis—the nation-state—and over four decades its accomplishments shaped how economic warfare came to be legally disciplined. The importance of this pre-World War II provocation joins an increasingly wide range of scholarship as to how Chinese actors and arenas were far more central to the development of the modern international legal order than has been historically recognized. Heath here combines a synthesis of existing works on Chinese boycotts with original archival research into how the force of these boycotts were interpreted by the dominant architects of the evolving early 20th-century international legal order.
The broadly transnational orientation of ESLO’s analysis is almost immediately on display as it does not begin with a description of Chinese boycotts, but American labor boycotts. In Part I of the article, Heath references the United States in order to place reactions to international boycotts within the broad trend of bringing such private action under the sole legal aegis of the state—without which such actions would serve as an unduly disruption to the nation-state’s monopoly on coercive power. It is through this tie to the domestication of labor boycotts that Heath first substantiates his central concept of legal insurgency. For Heath, this has four distinguishing components: “1) a process of rulemaking for distinguishing prohibited from permitted conduct; 2) organized practices of surveillance for detecting rule violators; 3) defined sanctions for the violation of such rules; and 4) more or less institutionalized procedures for updating and revising the above rules as circumstances require.” (P. 12.)
After describing how U.S. labor boycotts both fit these criteria and were progressively subrogated to state power, in Part II Heath details how Chinese consumer boycotts first emerged in 1905 as part of a general reaction to the persistent discriminations against Chinese citizens in the U.S. surrounding the now infamous Chinese Exclusion Acts. Up through 1932, eleven boycotts would be organized by an evolving set of Chinese actors against American and then British and Japanese products. While early boycotts were less successful in material terms, over time they became an increasingly effective coercive tool against their intended targets. In turn, new boycotts involved more organized and coordinated action that more thoroughly satisfied the four self-regulatory criteria of legal insurgency. So much so that by the 1930s, their impact, Heath reveals, was an almost taken-for-granted empirical premise for debates about how the international legal order should regard civil society action. While surveying debates on China’s early 20th-century shifting consumer and nationalist identities, Heath’s empirical work shows how foreign actors interpreted these boycotts as extra-national forces.
The core link between the boycotts and contemporary sanctions regimes is established in Part III. Here Heath shows how the boycotts intersected with the intensifying presumption that states owed an enforceable duty to foreign actors/investors to protect their property from the domestic actors whom states were presumed to control—even without clear enactment in treaties or through domestic legislation. International discussion of Chinese merchant guilds, long important nodes in the boycott movements, pressed on this point especially as the emergence of single-party states complicated the dividing line between “peoples” and the “state” across the globe. These debates drew in the leading international legal theorists of the day, such as Hersch Lauterpacht and the work of the Lytton Commission, as well as the new vanguard of Chinese lawyers trained to engage with Western legal institutions, such as Wellington Koo.
Here Heath makes clear that the boycotts did not lead to any clear academic consensus on non-state coercion, but that: “While these maneuvers in scholarly debates could not finally settle the dispute over the legality of the Chinese boycotts, they did create a vocabulary for requiring states to monopolize the means of legitimate economic warfare within their territories.” (P. 55.) Moreover, this vocabulary framed one of the key transitions in modern international law—the “admission” of new, largely non-Western nations whose competency as proper nation-states was judged based on their ability to assert exactly this monopolization of coercion over their internal constituents. Thus, while Heath shows a variety of reactions to the boycotts—notably their positive invocations by pacifists—it is provoking the formation of this state-centric vocabulary in which the boycotts had their greatest impact on the evolution of economic coercion within the modern international legal order. For many critical international legal scholars, this shift is recognizable as part of the process by which powerful nations forced weaker nations to self-police to facilitate the expansion of global capitalism. A point Heath links to James Gathii’s powerful formulation of what the international legal order achieved in “developing”—or Global South—countries that did not ultimately join the communist side of the Cold War.
What makes Heath’s linkage of the Chinese boycotts to contemporary understandings of economic sanctions so provocative is how he uses legal insurgency to reframe the breakdown of its ultimately universalist presumptions. Today, the rise of unilateral sanctions—largely enacted through, or in reaction to, the actions of the United States—itself satisfies the criteria of legal insurgency exactly. Heath details how unilateral sanctions have discarded the presumption of a universal right to trade and instead foreground the prerogatives of national sovereignty cum security—enacting sanctions against state and non-state actors without recourse to general legal rationales. By the end of ESLO, Heath thus achieves the double-feat of using the Chinese boycotts to denaturalize both the evolution and modern devolution of economic sanctions within the international legal order.
In Part V, he concludes by noting the type of radical imaginations foreclosed through the rejection of the boycotts in their own time—notably Chinese scholar Zhou Wei’s fully juridified world of global sanctions and English scholar Thomas Baty’s fully post-statist regime of economic coercion. He notes how legally protean arguments about economic coercion were during this time, less circumscribed by the doctrinal demarcations of international economic organization under scrutiny today.
Cognizant of past ethnocentric Western interpretations of Chinese law, Heath is transparent that his argument is exactly that— a study of Western interpretations of the Chinese boycotts and their deployment in Western-dominated legal contexts by those, Chinese actors included, trained to speak within their frameworks. Luckily, Heath’s work comes out during a time when many of the domestically centered accounts of the boycotts he cites are themselves being transnationalized by new scholarship exploring the legal dimensions of Chinese diasporic nationalism. Forthcoming work by Jenny Huangfu Day, Mara Yue Du, and Cong Wanshu are representative of this new work that seeks to more fully transnationalize how international legal practices evolved using the perspectives of domestic and diasporic Chinese actors.
Especially for debates within comparative studies of international law, or any other area of law, what is equally valuable about ESLO is that Heath acknowledges that others may better present different aspects of this large transnational history, but that it is simply materially incomplete to act as though such transnational dimensions simply do not exist because a domestically circumscribed analysis is easier.
ESLO’s footnotes demonstrate a serious engagement with scholarship on Chinese elements of his story—not through rote citation but committing the effort to recognize their internal debates and diversity. And such engagement is not just one-sided. Heath’s own diverse background in public and private international legal practice allows ESLO to explore interconnections with modern international legal practices that more China-focused scholars might miss or underappreciate. For many scholars, the revelation of deep transnational elements to most every arena of domestic law, especially the law of the central international actor of the 20th century, can inspire a reactionary discomfit of pushing beyond more comfortable frames of analysis. As Heath shows, this is akin to sticking to a geocentric concept of the universe because it is difficult to learn to use a telescope.
