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Meddling with International Relations


J. Benton Heath (@JBentonHeath) is Associate Professor of Law at Temple University Beasley School of Law.

Ah, cigarette,
You have the word American in your trademark for everyone to see
So I must give you up along with my bicycle.
Our love affair
Today must end.

Cigarette please don’t blame me.
Perhaps a time may come when we meet again,
But it must be after the Americans abrogate the treaty.
Then as before I shall be with you again.

–Cantonese boycott song, quoted and translated in Guanhua Wang, In Search of Justice: The 1905–1906 Chinese Anti-American Boycott (2001).

In the summer of 1905, groups of Chinese citizens in Shanghai, Canton, and other ports began a boycott of American goods to protest U.S. anti-Chinese exclusionary policies. The movement, as historians describe it, was a flurry of activity across social classes. The boycott was organized in public meetings, popularized through pamphlets and songs, and enforced through social pressure, ostracism, and, sometimes, even the threat of financial sanctions on non-compliant merchants. 

These events surprised many U.S. merchants and vexed U.S. officials. The boycott movement intervened in an ongoing negotiation between Beijing and Washington over a lapsed bilateral treaty governing commerce and migration. And the movement was hurting U.S. business. The U.S. ambassador to China soon insisted that the imperial government quash the movement, denouncing it as an illegal and “unwarranted attempt of the ignorant people to assume the functions of government and to meddle with international relations.”

The 1905 boycott is remembered for having heralded the birth of modern Chinese urban politics and protest, unleashing a nationalist, and ultimately revolutionary, consciousness both at home and abroad. It catalyzed the transnational politics of anti-Western resistance, in which “[b]oycott was a global strategy” that linked China, India, Turkey, and South Africa. And the 1905 boycott is sometimes remembered as an early, protean precedent for modern international economic sanctions.

In a forthcoming article, I suggest that these strands of the boycott’s legacy are more intertwined than we may often imagine. Today’s academic literature on economic sanctions only rarely engages with the tactics of social movements. But the practical reality is that these two tools often go hand in hand.

By turning back to a time when this interrelationship was self-evident and explicitly struggled over, I argue, we can learn something about our present predicament, and, perhaps, our possible futures. Sustained popular boycotts and state sanctions challenge the prevailing liberal economic order to imagine alternative, moral principles for ordering the circulation of goods and finance. These are not always good principles. But, in a time when the liberal order is in crisis and the new enthusiasm for economic statecraft can be downright frightening, popular movements may once again provide the inspiration for alternative ways to organize the global political economy.

The Law of a Boycott

Boycotts challenge law and make law. Even if a boycott does not “break” the law, it posits a way of ordering commerce that is in tension with liberal principles. Administering that alternative order is a complex task, which requires institutions. There must be rules for identifying what is prohibited and permitted. These rules must be revised periodically as producers seek to skirt the boycott by changing labels or brand names. This requires information, and that means there need to be practices of surveillance to detect norm-violators and evaders. And, to enforce the boycott, one needs to prescribe consequences for violations. Sophisticated boycotts—both in 1905 and now—bear all these hallmarks. 

Boycotts unite primary rules, procedures, enforcement, and institutions, all in the name of directing economic coercion. They are, if not legal orders themselves, law-like in operation. And this fact has never gone entirely unnoticed. As Willy Forbath writes of early twentieth-century America, “nothing was more common … than to hear an equity judge condemn [a] union for acting as a ‘self-appointed tribunal’ or ‘arbiter’ seeking to displace the courts’ rules of property and contract with its own ‘laws’ and ‘decrees.’” 

International lawyers saw something similar in the power of Chinese civil society. These lawyers were not necessarily hostile to the boycott as such. But the Chinese boycotts of 1905 to 1933 were directed by guilds, parties, and committees outside the formal power structure, and sometimes carried out against official Chinese state policy. Western lawyers recognized that such a movement challenged their efforts to ensure that new members of the family of nations adopt “the legal and political institutions that had enabled capitalist accumulation in the West.” In responding to the boycott, international lawyers thus deployed an alchemy of domestic labor law and international economic law to demand that China—and all states—keep the coercive activity of boycotters within tolerable bounds. To borrow a phrase, states were expected to monopolize the legitimate use of economic warfare within their borders. 

The Economic Warrior-in-Chief

But a funny thing happened along the way. At roughly the same time that states were monopolizing power over economic warfare domestically, they became freed to project that power internationally. As the historian Nicholas Mulder has recently argued, the early decades of the twentieth century were a period of legal and ideological contestation, in which the power to conduct international economic coercion was dislodged from its original wartime context and became a permanent feature of international life. In the process, state-imposed sanctions, once envisioned as a tool for enforcing rules of international law, became a new source of disruptive legal ordering.

The implications of this change were profound. The post-1945 order created a permissive environment for economic sanctions. And, when the coercive practices of Global North countries like the United States were challenged, these were largely unsuccessful. The result, by the century’s end, was a world saturated with unilateral economic coercion, whose distribution of power hardly reflected the world of equal sovereign states imagined by public international law.  

This new world of economic warfare links up poorly with the international legal order. Sanctions are sometimes treated as tools of international law enforcement. But sanctions are more likely to be used to defend parochial national interests—or to perpetuate “outdated” policy and sheer nonsense—than to reinforce international norms. And, at the same time, sanctions are themselves almost lawless—“legal grey holes” that are governed by very little, or very weak, domestic and international legal constraints.

Sanctions, rather, appear today much like boycotts must have appeared to U.S. merchants and diplomats in late imperial China. They are insurgent legal orders—pockets of global regulation that compete with and challenge, rather than support, the official international legal order. Sometimes, of course, sanctions can cooperate with international legal rules, as in the widespread effort to sanction Russia for its invasion of Ukraine. But more often, sanctions are a species of global security law that operate according to their own logic, and they cannot be easily reconciled with an international law of equal sovereign states.

From Global Governance to Movement Law

One solution to this problem is to repeat the moves of the early twentieth century, this time bringing international sanctions under the control of a global government. The thinkers of the interwar years imagined sometimes elaborate systems for the international control of economic warfare. But the Charter of the United Nations did not live up to these visions. And subsequent efforts to articulate a general norm against economic coercion have foundered on deep and growing divides between developing and developed countries. True global governance of economic warfare feels both urgently necessary and far out of reach.

In the meantime, instead of looking for solutions only at the top, perhaps we should instead turn to the bottom—to those “ignorant people” who the U.S. ambassador complained were assuming the functions of government and meddling with international relations. Recently, we have seen once again how protest movements can prefigure alternative ways of organizing politics and economy. And we find similar examples throughout history. For instance, the global anti-apartheid movement, in its campaign for sanctions, managed to redefine the relationship between U.S. national security and international human rights, against the objections of the administration.

The contemporary BDS movement targeting Israel provides yet another example. The movement asserts that sanctions are “usually prohibited” under international law, but are permissible for violations of peremptory norms such as apartheid and the denial of self-determination. As a statement of positive law, I disagree with the first half. But, as Jeena Shah argues in an important forthcoming article, this contention points the way toward a fully worked out theory of economic coercion that embraces both its destructive power and its emancipatory promise. It is a thread worth following.

And ideas like this are worth protecting. In a 1982 case stemming from a civil-rights era boycott in southern Mississippi, the U.S. Supreme Court articulated a defense of boycotts that recognized the value of vigorous and organized economic protest, protecting a movement that used coercive tactics—both legal and illegal—to challenge conditions of racial subordination. This vision is now under threat from a wave of anti-BDS legislation. Some voices have even defended these anti-BDS laws as part of a comprehensive and global U.S. strategy for economic warfare, using language that otherwise echoes the bipartisan consensus in Washington that a new era of economic statecraft is upon us.

Non-state economic coercion has always been with us. And it is frequently repressive. For every emancipatory social movement, there is paramilitarism in defense of property, quasi-official corporate boycotting, and cooperation between security forces and private groups to block the transfer of food and other goods to where they are most badly needed. Sometimes, as in the American labor movement or in the handful of actually troubling scenes reported from divestment camps, the repressive and the emancipatory inhabit the same political-economic space. In turbulent times, we can understand the desire to seek security, to reach for the power of the state, and to ensure that the state’s monopoly over legitimate violence extends even into the realm of economic coercion.

And yet. In witnessing the rapid and brutal repression of divestment protests, in seeing the willingness to paint entire social movements with the actions of their most extreme and violent adherents, and in reading the efforts of anti-BDS advocates to shrink the space for non-state economic action, it seems clear we are not being made safer. We are once again monopolizing state power over economic protest. And we are simultaneously projecting that power internationally with greater-than-ever fervor.

If we are going to chart a course out of this—to live equality, dignity, safety, and peace—we are going to need the prefigurative imaginations of social movements. In 1909, reacting to a wave of successful boycotts in China and Turkey, the French journalist René Pinon remarked that “[t]he old forms are perishing: old diplomacy which ignored the people, old philosophy which knew only individuals, old conceptions of the state and authority, old forms of national wars.” History, of course, had other plans. But this time the path before us is not yet set. And perhaps we can chart an alternative course by thinking with emancipatory social movements rather than against them.