Law, Power and International Politics with Special Reference to East Asia: Carl Schmitt's Grossraum...

Law, Power andInternational Politics withSpecial Reference to EastAsia: Carl Schmitt’sGrossraum Analysis

Michael Salter*

Abstract

Working as both lecturers and researchers within the theory and practice ofinternational law, we are regularly confronted with materials and issues thatraise the question of the relationship between this form of legal regulationand the political exercise of sovereign power. In turn, this persistent con-frontation raises the question of which type (or types) of analytical perspec-tive is most likely to illuminate how this relationship appears within the EastAsian and other geopolitical contexts? For example, have we, as the Germanlaw professor Carl Schmitt suggested in the mid-20th century, been enter-ing a new global order comprising multiple and co-existing regional hege-monic bodies, each possessing its own spheres of influence and located atan intermediary level between the United Nations and the traditional indi-vidual nation State? In this order of large political spaces, will China’sgrowing status as a regional superpower, projecting its sovereign powerand influence well beyond its own national borders, require legal recogni-tion by a modified and realist form of international law and, if so, thenin which particular ways?

China will always be a good brother, good neighbour and good partner of

fellow Asian countries. As China pursues peaceful development, it has, at

the same time, embarked on a journey of solidarity with other Asian

∗ Professor of Law, Lancashire Law School, UCLan, Preston UK (email: [email protected]).This article is based on my presentation to the 23 April 2012 conference at Lancashire LawSchool, UCLan UK on Maritime Peace in East Asia organized by my colleagueProf. Keyuan Zou.

# The Author 2012. Published by Oxford University Press. All rights reserveddoi: 10.1093/chinesejil/jms043.......................................................................................................................................

...................................................................................................................................................................11 Chinese Journal of International Law (2012), 393–427

countries. With the once-in-a-century opportunity for Asia’s rise right before

us, the Chinese people are ready to work with the people of other Asian coun-

tries, hand in hand and shoulder to shoulder, for the great development of

Asia and the great development of international law in Asia. Together, we

can make fresh and even bigger contributions to human civilization, inter-

national legal civilization included.**

I. Introduction

1. Any consideration of the topic of law, power and international politics will inev-

itably be shaped, whether expressly or covertly, by the underlying scholarly perspec-

tive and overall orientation of whoever carries out this analysis. There can be no

perspective-free or theoretically neutral way of addressing this or, perhaps, any

other topic within international law; it is clearly better that the nature and influence

of our underlying perspectives be acknowledged and opened up for debate than

allowed to operate covertly “behind our backs” as it were. This study addresses

the topic of law, power and international politics expressly through the lens of

one of the founders of the realist tradition within international law scholarship:

Carl Schmitt. It discusses the possible relevance of Schmitt’s analysis of the

spatial dimensions of international law to a distinctly regionalist model of thissubject. This is an analysis that focuses upon devising appropriate forms of legal

regulation for large geopolitically defined spaces (Grossraum) transcending the

borders of many individual nation States. Such spaces are integrated according to

both a shared political idea and principles, such as a specification of overarching

“Asian values”, and mutual self-interest, perhaps in terms of regional security and

protection from extra-regional interference.1

2. The traditional idea of international law centred on individual States has, for

Schmitt, become outdated, even anachronistic. Hence, international law scholarship

now needs to consider a range of alternative models of regulation to adequately

reflect how transnational geopolitical relations and power politics are actually oper-

ating in practice. In particular, it is increasingly clear that developments in commu-

nications, military and other technologies, including satellite surveillance, as well as

changes within post-Cold War international relations, international finance and

world trade, cannot be ignored by international law scholarship. These develop-

ments mean that a small number of regional superpowers, together with certain

major powers and temporary alliances, are able to project effective sovereign

∗∗ DAI Bingguo (State Councilor), Asia, China and International Law, 11(1) Chinese Journalof International Law, (2012), 1, 1–3.

1 See Erik De Vries (ed. and trans.), Alexandre Kojeve/Carl Schmitt Correspondence,29 Interpretation (2001), 94, 102.

394 Chinese JIL (2012)

power, of both hard and soft types, well beyond their formal State borders, and to

do so in ways that international law still typically fails to sufficiently register.

3. For Schmitt, during the 20th century, many formally and legally “independ-

ent” States had, in practice, become little more than “controlled States” of regional

superpowers. The latter exercise sovereign power within an extended spatial zone of

influence by treating such “States” as their proxies, as “client States”. At one extreme

of the spectrum, this power politics allows superpowers to exercise de facto presence

within international bodies relevant to transnational law through their controlled

proxies, despite being “absent in principle”. This can arise in the context of their

refusal, for example, to sign a particular treaty or to join a transnational body,

such as the International Criminal Court (ICC). It may even be in the concrete

interests of regional superpowers to maintain the legal fiction of a global order con-

sisting of over 100 formally “equal” and supposedly “independent” nation States,

each with representation rights, precisely to facilitate the most effective deployment

of proxies within international bodies, including international courts and trans-

national law-making and enforcement bodies. For example, with the exception of

the Vietnam War, the USA has certainly benefited historically from having the

UK as its generally compliant client State within the UN Security Council.

4. International law scholarship needs to take seriously this and other types of im-

perial power operating within our field of study. It is necessary both to map out and

then analyse the conditions for such powers’ successful deployment in practice by

giving special attention to the role of international law devices in facilitating the ex-

ercise of imperial forms of power.

5. The second section of this paper sets out a model of Grossraum (large spatial

blocs), critically and selectively developed from Schmitt’s numerous international

law writings. According to Schmitt, a transformed and more realistic form of inter-

national law is increasingly needed to accommodate itself to the following aspects of

a distinctly Grossraum transnational order:

(1) A Franco/German-dominated continental European Grossraum.

(2) A Latin American federation in which Brazil is beginning to play the role of

the leading hegemonic State.

(3) A South East Asian power bloc, where following the relative decline of Japan,

the People’s Republic of China (PRC) has become the regional superpower.

(4) A Russian Grossraum continuing to operate as a scaled-down and post-com-

munist regional superpower: one that embraces those former “satellite States”

of the old Soviet empire that have not aligned themselves with the European

Union.

6. This Grossraum model proposes an alternative approach to optimizing peaceful

relations. For Schmitt, post-Maoist China has—for interesting reasons, influenced

by the partisan warfare model of politics that helped create the modern PRC in

Salter, Law, Power and International Politics with Special Reference to East Asia 395

the first place—become a potential or emerging leading State with its own Gross-raum. However, current international law recognition of the implications of this

emerging state of affairs has unfortunately remained underdeveloped, even within

scholarship. Section III of the present study addresses the historical examples that

Schmitt draws from East Asia. It focuses, in particular, upon conflictual relations

between China, Japan and the USA, including the latter’s “open door” policy con-

cerning the economic colonization of China, and the equally imperialistic US

Stimson Doctrine of 1932. Schmitt uses these examples to illustrate his more

general points concerning the nature of and the need for an expressly formulated

Grossraum order of transnational law, whose agenda and focus depart from trad-

itional State-centric international law in various interesting ways. The final part

of the present study addresses Schmitt’s analysis of both the historical eclipse of

the modern State and the continuing contemporary relevance of Grossraum analysis

at a more general level.

7. The current study builds upon, and gives a specifically East-Asian twist to, my

earlier study of Schmitt’s general theory of law, the bulk of which he formulated

during the first half of the 20th century,2 and a more general international law

study on Grossraum which I recently published in the Tilburg Law Review.3

8. Does Schmitt’s Grossraum analysis of long-term geopolitical trends allow us to

better understand our current situation? Today, it is not States considered as self-suf-

ficient entities, but rather assemblages of nations brought together into regional

power blocs that are often the central players within international relations, and

hence creators and enforcers of transnational law. We are, perhaps, currently witnes-

sing the emergence of a more pluralistic international order in which regional

bodies, such as the European Union, the Arab League and the African Union,

can increasingly exercise overriding forms of de facto sovereignty within national

borders. Such power is exercisable at the expense of the ambitions of not only the

United Nations but also affected individual nation States jealous of what they

take to be their right to exercise unrestrained national sovereignty. If this claim is

right, then how are international law scholars to make best sense of the legal implica-

tions of the rise of Chinese geopolitical power (which is funded and supported by

economic power based partly on massive successes within its export markets), oper-

ating within and beyond the East-Asian region?

9. Are some of the imperial practices relevant to international law, including

treaty devices, that Schmitt identified as central to the rise of the USA as a global

superpower, potentially available to the PRC? We cannot ignore the fact that,

with the exception of its military capabilities, the USA may be experiencing a

2 Michael G. Salter, Carl Schmitt: Law as Politics, Ideology and Strategic Myth (Routledge2012).

3 Michael Salter, Carl Schmitt and the return of politicised space, 17 Tilberg Law Review(forthcoming 2012), 1.


relative decline as this State’s public debt has increased to well over 60 per cent of its

national income, with a significant proportion of such debt held by the Chinese

government. The latter has in this way become increasingly able to enjoy the

enhanced geopolitical power that almost inevitably stems from being recognized

as a major creditor nation. Schmitt claimed that the rise of the USA as a 20th-

century superpower was facilitated by its strategic manipulation of various credit-

or–debtor relations to shape to its geopolitical advantage international treaty obliga-

tions with Asian and other States. Now that this historic position is becoming

reversed, it will be interesting to see if China can become as nimble and creative

as the USA in deploying such imperialist devices within processes of international

law regulation to enhance its global position.

10. To address these questions in a serious manner, we need to consider Schmitt’s

analysis of the historical eclipse of the traditional model of the State as a bearer of an

allegedly individualized, discrete and self-sufficient form of national sovereignty. It

is equally important to consider the implications and possible contemporary rele-

vance of Schmittian Grossraum analysis, particularly his theory of the spatial dimen-

sion of delimited territory as a central—if previously neglected—theme for

international law scholarship.

11. The role that China, and to a lesser extent Japan and East Asia more generally,

play within Schmitt’s realist, and thus geopolitically oriented, approach to inter-

national law and relations, is a topic that deserves more attention than it has received

within the academic literature to date. One section of the present paper aims to

redress that imbalance. First, however, I will turn to Schmitt’s legal writings as a

source for devising a conception of the nature of (geo)politics appropriate to our

current tasks.

II. On international law’s politics/geopolitics’ international law

12. How are we to make sense of the law–politics relationship? If international

lawyers eliminated from their field of study all aspects of transnational relations

shaped by geopolitical relations of war and peace, or by revolutionary upheaval,

insurrections and economic relations influenced decisively by unequal relations of

political power, then how much would there be left to study? Contrary to Kelsenian

legal positivism, it is not the presence of transnational politics within international

law that must be considered as a form of contamination by an alien entity, but rather

the always restricted—sometimes minimal—space that is left open for the strictly

“non-political” side of this subject. This was clearly recognized by Schmitt as a

founder of realism within international law scholarship, although this achievement

is too often attributed to Hans Morgenthau whom Schmitt influenced decisively.4

Schmitt’s distinctly realist approach, attuned to the geopolitics of international law

processes, developed the outlines of a Grossraum (literally “large space”) model,


treating such law as a distinct subset of international relations. In turn, such relations

are often shaped significantly by, and actively contribute to, changing patterns of

power politics that, at any one time, comprise the unavoidably geopolitical

context within which transnational legal regulation operates.

13. How, though, are we to understand and deploy that much used but rarely

analysed conception of “politics“? At both the conceptual level and in terms of spe-

cific contexts of application, it remains a formidable task to identify, and then

clearly distinguish, the currently “political” from the “non-political” aspects of

international law.5 “Politics”, from Schmitt’s perspective, is not a distinct realm,

like that of trade, music or science, to which the field of international law may or

may not be related in some ways and distinguished from it in others. This is

because the defining characteristic of politics, more precisely “the political”, lies

in the intensity of association/affiliation whereby individuals, groups and clusters

of States form themselves into transnational relations as one another’s current

allies, neutrals or enemies. Then, from this perspective, such States typically act

according to their concrete understanding of what these relations currently entail in

practice. In turn, this may involve preparations either for armed conflict or for its

avoidance, resolution, containment or even mitigation.6 If Schmitt’s model of polit-

ics/geopolitics as a contingent and historically changing form of association/disasso-

ciation operating with historically varying levels of intensity is correct, then the field of

international law is neither intrinsically political nor essentially non-political. Instead,

it is a realm that is permanently open to being both politicized and depoliticized de-

pending upon the current actions and orientations of those major powers and power

blocs that are playing the most decisive roles within it. Here, we must recognize that

the technocratic depoliticization of international law issues can itself operate as a form

of (geo)politics, even a particularly intense and covert one.

14. From a Schmittian perspective, whilst everything, even religion and econom-

ics, is capable of becoming politicized, and thus of functioning as a specifically pol-

itical device, certain highly technical, procedural and institutional aspects of

international law are far less likely to develop a distinctly political character. This

is because technicalities, such as rules governing the retirement age for judges at

the International Court of Justice (ICJ) or time limits for bringing litigation

under different headings, rarely affect the material, national interests of States suffi-

cient to create an “us”-versus-“them” transnational relationship. However, much of

the remainder of international law operates in a field shaped decisively by the active

pursuit of such material interests, albeit in ways that vary in extent and intensity

from one historical and social context to another.

4 On the indebtedness of Morgenthau’s realist approach to Schmitt, see William Scheuerman,The End of Law (Rowan and Littlefield 1999), ch. 9.

5 See Salter, n.2 above, 29–34.

6 Carl Schmitt, The Concept of the Political (Chicago University Press 2007), 25–37.


15. For example, the driving forces behind the promotion and resistance to both

institutional and doctrinal reform, such as the creation of the ICC or the 1998

Rome Statute, would remain incomprehensible if international law scholars

refused to address the changing patterns of geopolitical alliances for and against

this initiative, which first made such developments possible. Therefore, internation-

al law scholars can usefully contrast the relative lack of overt political significance

currently ascribed to purely technical/procedural aspects of international law

with, say, the United States’ extremely negative political reaction to the prospect

of its soldiers, generals, peace-keepers and political leaders being charged with,

say, war crimes, including crimes of international “aggression”, before the ICC.

16. Another relevant instance of the geopolitical mediation of international law

concerns debates over the legal basis, including within transnational criminal law,

of US military (mis)adventures in Kuwait, Iraq and Afghanistan, and before that,

in Korea and Vietnam. There has also been the question of the legality of US prac-

tices of “regime change” in Chile and other Latin American States accomplished by

covert and indirect means, including conflicts involving terrorist and partisan modes

of warfare delegated to its proxy forces. Here, the United States matched, sometimes

even exceeded, the Soviet empire in terms of its militant disregard for international

law obligations, particularly where the latter imposed unwelcome restraints, even in

relation to acts of genocide.

17. Furthermore, it is increasingly clear that, despite legalistic assumptions to the

contrary, judicial decisions within international law are not wholly determined by a

uniquely legal logic and “purely legal” (and hence “non-political”) form of reason-

ing: that is, one that is necessarily blind to either the policy impact of different ju-

dicial options and choices, or to the moral qualities of the behaviour of the parties.

In each of these examples, it is not, or more precisely not only, a question of recog-

nizing how “non-legal” geopolitical factors are “influencing” both the inputs and

outputs of international law processes from “the outside”, as it were, as contexts

of emergence and practical consequences. Instead, the interpretative nature of the

decision-making basis internal to “law itself” involves judges making unavoidably

political choices between alternatives.

18. Judges have to carry out their role within situations where pre-existing trans-

national legal norms (and their strictly normative, “black-letter” style of doctrinal

analysis) regularly fail, insofar as they rely only upon their own resources to generate

the proverbial “single correct answer” to the issue(s) in question. For example, any

legal treaty is open to narrowly literal/semantic, as well as broad and purposive,

interpretations. Each can be judicially understood and applied in the light of

either its original context of emergence (the politically defined problem that it

was allegedly first created to resolve), or the significance this treaty has later

accrued over time through subsequent, successive judicial applications. Judges

also remain free to give priority to the alleged “integrity” of legal doctrine


considered in isolation, or to treat as decisive the practical consequences of alterna-

tive legal determinations. Wherever choices have to be made between alternative

interpretations in the absence of binding rules or meta-rules, the prioritization of

one option over another cannot help but be a political act irrespective of the inten-

tions and statements of the judges themselves.

19. Furthermore, many key conceptions of international law generally, and

within international criminal and humanitarian law in particular, including the

1899/1907 Martens Clause and the UN Charter, are expressed in highly general

terms.7 The meaning and scope of definitions of the terms “security”, “principles

of humanity”, “aggression” and even “genocide”, exhibit considerable elasticity

and indeterminacy. Neither their scope nor their significance for any particular

dispute can be fully specified in advance. Hence, the unpredictable judicial reinter-

pretation of earlier judges’ interpretations of positive legal doctrine, which are them-

selves shaped by the institutional politics of the judiciary, inevitably remain both a

dynamic source of international law and a driving force within the wider politics of

law reform. Within my own area of transnational war crimes law and international

human rights law, the case-law decisions make it clear that, for policy and political

reasons, few judges have been willing to interpret doctrinal ambiguities over rights to

“freedom of expression” in ways supportive of political extremist movements pro-

moting either genocide or genocide denial.

20. Taking these points together, it is quite literally incredible to assume that

questions of international law doctrine, including the legality of the possession

and threatened use of nuclear weapons, could ever be approached, understood

and resolved in a strictly non-political manner: that is, wholly in terms of the ob-

jective judicial application of the meaning and scope of prior legal rules and prin-

ciples. Rather than attempting in vain to separate international law and its analysis

from the geopolitics of international relations, we simply have to accept that our

subject often embraces and partly fuses both these disciplines, with each potentially

casting welcome interdisciplinary illumination upon aspects of the other. Whatever

else it is, international law is not—and cannot be understood and taught as—a dis-

crete and stand-alone subject. The classic positivist law–politics opposition is thus

best understood against its own grain in terms of the covert politics of

depoliticization.

21. Finally, if a Schmittian approach is right in insisting that (geo)political factors

typically mediate international law not only from the “outside in” but also from the

“inside out”, then we must acknowledge another type of political mediation:

namely, that remarkable form of politics involved in depoliticizing international

7 This theme of semantic elasticity is explored as a case study in Michael Salter and Maggi East-wood, Establishing the Foundations for the International Criminalisation of Acts of Geno-cide: From the Martens Clause to the International Criminal Court, in Paul Brehens andRalf Henham (eds.), Elements of Genocide (Routledge forthcoming August 2012).


law in pursuit of hegemonic control. The familiar activity of disguising, even mis-

representing, decision-making processes involving a political dimension, as though

these were purely a matter of faithful judicial rule-following and as if law interpreted

and applied set formulae and requirements in a mechanical manner akin to a

vending machine, is itself deeply political, even ideological, in nature. This is

because, where effective, such depoliticization disguises its own political elements,

allowing these to operate without being interrupted by inconvenient forms of crit-

ical scrutiny.

22. Other factors that add to this issue include the inappropriate projection upon

the transnational level of liberal constitutional doctrines of the separation of judicial,

executive and law-making powers. This is too often combined with positivist models

of the radical analytical separation of the question of “what the law is”, as a doctrinal

“given”, from the issue of “how it ought to be, morally/politically speaking”. From

Schmitt’s perspective, the fact that judges hearing international law cases are obliged

by such doctrines to downplay, or otherwise disguise, the political logic at play in

their decision-making work, to depoliticize the politics of legal decision-making

is itself an unavoidable core practice of the self-contradictory, and deeply anti-demo-

cratic, politics of liberal constitutionalism.8 The advance of this perspective as part

of the imperialistic Westernization of the globe, strategically misrepresented as “glo-

balization”, the “liberalization of markets” or even “international development”,

may serve only to intensify the problems described here.

III. Schmitt’s Grossraum model

23. I will now turn to Schmitt’s alternative, regionalist Grossraum model of trans-

national law, paying particular attention to its relationship with the questions of

war, neutrality and peace. This model projects the possibility of a generally peace-

ful—if fragile and potentially threatened—global equilibrium arising between a

small number of regional, culturally differentiated power blocs. This can only

occur where each, for its own self-interested reasons, remains committed to princi-

ples of non-intervention in the domestic affairs of others, to resistance to all forms of

imperialism (including cultural, economic and legal) and to mutual respect for

those different cultural traditions that provide the distinctive integrating principle

for each Grossraum.

24. For Schmitt, to be viable, each Grossraum must be territorially bounded geo-

graphically and embrace a particularist form of ideology rooted in its peoples’ dis-

tinctive cultural traditions. Where these requirements are sufficiently met, then there

8 The tension between liberal constitutionalism and principles of democratic ordering based onconceptions of a people’s sovereign right to exercise self-determination is a frequent theme inSchmitt and Schmittian legal scholarship. See Carl Schmitt, Constitutional Theory (DukeUniversity Press 2008), paras.17–22; and summarized in Michael Salter, above n.2, ch.7.


is the possibility of preserving a global order comprising separate regional entities—

each possessing sufficient sovereign power to secure stability and internal order by

pursuing its regional interests. Here, the distinctly political (rather than criminal)

nature of transnational conflict between both States and Grossraume (the plural of

“Grossraum”) must be openly recognized. It must not be criminalized as “the

crime of aggression” within a revised international legal system that provides regu-

larity to relations of transnational friendship, neutrality and enmity. Political con-

flicts between Grossraume may be inevitable because each will typically give

priority to their own material interests in those situations where, in practice, their

ambitions cannot be equally or fully satisfied. However, the key thing is that their

overall legal order firmly rejects universalistic ideologies endorsing the global dom-

ination of any single superpower or the superpower worldview. Such domination

would effectively negate the indigenous pluralism of the geopolitical realm.

Schmitt’s model thus remains committed to pluralistic principles safeguarding

both the particularity and sovereignty of each Grossraum as a defensive posture:

one that is directed polemically against imperialistic forms of universalism. This

model requires law to fully recognize, rather than selectively criminalize, such inev-

itable and “normal” sovereign political conflict, but to do so in ways that contain

and mitigate both its conduct and effects.

25. According to Schmitt, economic forms of US imperialism threaten such a

prospect of generally peaceful co-existence within a legally regulated Grossraumorder. This imperialism is driven by spatially uprooted and undifferentiated

forms of legal universalism, including the “liberalization”/“freeing up” of markets

and the projection of, say, distinctly American values under the banner of “global-

ization” and “human rights”. This new, and in part legally embedded, form of im-

perialism differs from the old-style European colonialism because only the latter

involves the acquisition of territory by means of the projection of political and mili-

tary power. By contrast, for Schmitt, US economic imperialism involves the authori-tative political ordering of space.

26. Schmitt identifies four distinct yet interrelated practices of such imperialism,

three of which involve international law devices:

(1) Treaty-based subversion of statehood: the use of bilateral international treat-

ies that reserve a right to US intervention on broadly defined conditions

whose interpretation and application is reserved to the USA alone.

(2) Selective recognition of statehood and national borders under the 1932

Stimson Doctrine, which rejects changes accomplished in ways that differ

from liberal constitutional expectations, such as those methods of revolution-

ary warfare that, ironically, were deployed to create the USA itself.

(3) Processes of depoliticizing expansionist forms of US economic power by mis-

representing this ideologically in terms of an “advance” in human “freedom”,

with “freedom” of trade, capital and labour, for example, each being


characterized as a “universal good”. Based on an ideological either/or dichot-

omy, economics is thus redefined as essentially “non-political”, whereas

“politics” is (re)defined restrictively as fundamentally “non-economic” in

nature. Through the application of such ideological-interpretive devices, the

presence of US economic imperialism is made to appear as no longer imperi-

alistic at all, merely a welcome sign of “progress”, or even “international

development”.

(4) Globalizing terminologies of empire.9 Here, highly political and potentially

contestable aspects of international treaties, including peace treaties, are rein-

terpreted ideologically in apparently unproblematic, often quasi-contractual

terms, such as “reparation obligations”. These ingeniously deployed terms

operate as an ideologically convenient substitute for more openly and honest-

ly political conceptions, such as the “tribute” paid by a defeated State to its

conquerors. Furthermore, within the contexts of economic imbalances in

favour of an imperial power, the latter’s promotion of the terminology of

the self-evident “sanctity” of private property and contractual obligation

cannot be non-political. This is because their implications reinforce existing

relations of creditor and debtor nations to the advantage of the former. Im-

perial power also includes, and perhaps even requires, clear mastery over the

terminologies of legitimation of such power.10

27. The insidious types of domination created by such imperialistic practices risk

creating forms of resentment, including a generic anti-Americanism, as well as

both non-violent and armed acts and programmes of resistance. These, in turn,

positively encourage transnational conflicts and disruptions. In resisting such im-

perialism, Grossraum analysis and practice can potentially make a contribution to

defusing a key source of international conflict.

28. For present purposes, it is worth noting that Schmitt developed and illu-

strated crucial elements of this overall argument concerning the centrality of trans-

national power politics within the heart of international law by making express

reference to historical points concerning US foreign relations with both China

and Japan: the theme of the next section.

9 On one aspect of the semiotic/linguistic dimensions at play here, see Michael Salter, CarlSchmitt on the Secularisation of Religious Texts as a Resacralisation of Jurisprudence? Inter-national Journal for the Semiotics of Law (March 2012) (http://www.springerlink.com/content/k0231550rl60t885/ (last visited 5 July 2012)).

10 Carl Schmitt, Forms of modern imperialism in international law [1932] (Matthew Hannah,tr.), in Stephen Legg (ed.), Spatiality, Sovereignty and Carl Schmitt (Routledge 2011), 29.


IV. How does China feature in the emergence of Grossraumthinking?

29. There are at least five distinct ways in which the modern history of China fea-

tures within Schmitt’s international law studies, two of which present it as negatively

affected by the expansionist actions of Japan that were initially encouraged by US

foreign policy.

30. Firstly, Schmitt notes that Japan’s defeat of China during the Sino–Japanese

war of 1894 and of Russia in the Russo–Japanese war of 1904–1905, proved a de-

cisive geopolitical event. In both cases, Japan was perceived by the major Western

powers as having generally observed the “laws and customs of war” as pre-defined

by the Eurocentric type of international law developed by the 1899 Hague Regula-

tions. (By contrast, Japan regarded its participation in the punitive expedition

against China in 1900 as their main qualification for entry/admission into this ex-

clusive European club.) Such compliance, Schmitt claims, convinced these major

powers that Japan ought to be the first Asiatic State to merit recognition and admis-

sion as a fellow “major power” whose importance was at least on a par with the rec-

ognition of statehood. Before this time, Japan had not been recognized by the Major

Powers either in itself or as the centre of an East Asian Grossraum embracing China

and other regional States.

31. Schmitt maintains that, during this period, international law remained firmly

Eurocentric. Both Asia and Africa featured only as “the objects” of colonial appro-

priation, rather than being recognized as equal subjects of, and participants within,

this transnational legal enterprise. For example, even Japan played no role in the

1884–1885 Congo Conference in Berlin that divided up and partitioned parts of

Africa. This conference had involved the USA, Turkey and exclusively European

and Scandinavian States. Hence, the idea of a distinctly Asian or African, region-

specific form of international law capable of rivalling the Eurocentric system, was

not even considered a possibility. This was even as late as 1910, when proposals

for a distinctly Latin American Grossraum emerged.

32. As already noted, from the turn of the 20th century, Japan became a member

of the small circle of major powers that sustained Eurocentric transnational law. This

status afforded this East Asian State significant legal privileges in terms of land ap-

propriation, a right to acquire colonies and even entitlement to participate in the

administrative associations (including the Postal Union) and law making institu-

tions of international law, such as conferences and law reform negotiations. Both

Japan and China were admitted to the Postal Union, although this was misunder-

stood as a purely technical matter irrelevant to the distinctly European quality and

status of the prevailing Eurocentric international law. Schmitt further emphasizes

that Japan also participated in the 1907 Hague Conference despite not having

been invited to the 1899 predecessor conference.


33. These and subsequent acts of recognition of Japan as a fellow major world

power, including its participation in the Paris Peace Conference of 1919 where

its “special interests” within East Asia were expressly recognized, appeared on the

face of it to be an expansion of the Eurocentric spatial order: that is, an order

bound together by various bonds of shared history and common religious and ideo-

logical assumptions. However, in practice, this event, where the Ottoman-Turkish

Empire lost its Asian colonies, and both Germany and Hungary suffered complete

exclusion, signalled one aspect of this transnational order’s ultimate dissolution: It

contributed to the “dethroning” of Europe from its prior status as the centre of the

world of international law.

34. Between 1899 and 1920, the Eurocentric system, which had been rooted in

this continent’s distinctive historical experience, collapsed into a loose collection of

States and quasi-States. This collection lacked not only any spatial grounding but

also any shared orientation: it constituted little more than a “spaceless universalism”.

The inclusion of Japan and other Asian States accelerated this process of dethroning

Eurocentric international law from the centre of this legal universe.11 The result was

a “non-system” with little more shared cultural orientation than that enjoyed by tra-

vellers passing through an international airport lounge or by guests in a hotel.

35. Secondly, China also features within Schmitt’s international law writings as

an example of a State that, from the turn of the 20th century, became vulnerable

to American expansionist ambitions of a distinctly imperialistic type. The latter con-

sisted of a distinctive economic form of imperialism concerned with the capturing

of raw resources and markets, whose strategies selectively mobilize various inter-

national law devices and “general principles”.12

36. Thirdly, China appears in Schmitt’s work in relation to the rise of Japan as an

East Asian regional superpower during the 1920s and 1930s, as a growing counter-

weight to Anglo-American geopolitical power.13 He notes that China, and Indo-

China more generally, has played a major role in the creation of modern forms

of partisan warfare, with important political implications. In his Theory of the Par-tisan, Schmitt states:

Serious partisan battles have been raging in large(-scale) areas of the world for

30 years now. They began already in 1927, before World War II, in China and

other Asian countries that would later take up arms against the Japanese inva-

sion of 1932–1945. During World War II, Russia, Poland, the Balkans,

France, Albania, Greece, and other regions became arenas for this kind of

war. The partisan struggle continued in Indochina, where the Vietnamese

communist leader Ho Chi Minh, and the victor of Dien Bien Phu,

11 Carl Schmitt, Nomos of the Earth (Telos Press 2003), 232–233, 232 fn.15, 290.

12 Carl Schmitt, above n.10.

13 See Carl Schmitt, Grossraum versus universalism, in Stephen Legg, above n.10, 46, 48–52.


General Vo Nguyen Giap, were particularly effective against the French colo-

nial army.14

37. Fourth, and perhaps with more contemporary relevance, Schmitt’s theory pro-

jects a pluralistic and regionalist model of international law and relations. This

model possesses an element of possible realism only following the collapse of the

Cold War’s binary division of the world. It is inspired, in part, by variations

upon the core principles of the US “Monroe Doctrine”.15 This Doctrine was a dec-

laration from US President Monroe on 2 December 1823, stating that further

efforts by European States to colonize, or otherwise interfere with, newly independ-

ent American nation States, would be viewed as acts of aggression requiring US

intervention. The Doctrine noted that, in return, the USA would neither interfere

with existing European colonies nor intervene within the internal affairs of Euro-

pean countries. It asserted that the USA would act as a protectorate over much of

Latin America, defending it from European re-colonization, especially by Spain

and France; whilst in return agreeing not to interfere in affairs taking place

outside of this protectorate zone.16

38. For Schmitt, this doctrine became not only a defining moment in US foreign

policy but also one of its longest-standing principles invoked by many later US pre-

sidents. In effect, it declared that the entire continent of America represented an ex-

clusive zone of influence and protectorate of the USA. It effectively endorsed an

exclusive but self-limiting regional Grossraum.

39. Schmitt’s exploration of the contemporary relevance of this doctrine suggests

that a small number of regional superpowers may be able to act as the guarantors of

regional security of an extended slice of geopolitically defined space: one that

encompasses a number of other States within the same region. Only a “leading

14 Carl Schmitt, Theory of the Partisan (Telos Press 2007), 8.

15 US President James Monroe first introduced the Monroe Doctrine in his seventh annualState of the Union Address to Congress on 2 December 1823. The most relevant sectionstates:

We owe it, therefore, to candour and to the amicable relations existing between theUnited States and those powers to declare that we should consider any attempt ontheir part to extend their system to any portion of this hemisphere as dangerous to ourpeace and safety. With the existing colonies or dependencies of any European powerwe have not interfered and shall not interfere. But with the Governments who havedeclared their independence and maintained it, and whose independence we have, ongreat consideration and on just principles, acknowledged, we could not view any interpos-ition for the purpose of oppressing them, or controlling in any other manner theirdestiny, by any European power in any other light than as the manifestation of an un-friendly disposition toward the United States.

(http://www.nolo.com/legal-encyclopedia/content/monroe-doctrine-speech.html (last acce-ssed 5 July 2012)).



State” with enhanced political power and widely recognized legitimate cultural au-

thority within the region, could ever be able to create, sustain and safeguard a Gross-raum as a basic geopolitical unit within a multi-polar global legal order. Broadly

akin to the European Union, each Grossraum would need to voluntarily “surrender”

a measure of its formal sovereignty in return for guarantees of protection and other

material benefits.17

40. Schmitt’s Grossraum model thus projects the possibility of a post-Cold War

and multi-polar international order where international law would have to finally

recognize how a small number of regional power blocs have arisen to become the

de facto creators of and leading players within transnational relations more generally.

Such law would then have to strive to adapt and modify its traditional State-centric

categories to accommodate the implications of this development.

41. Although Schmitt was personally extremely conservative, having been influ-

enced decisively by the Hobbesian authoritarian tradition, his study from the mid-

1960s, The Theory of the Partisan, expresses open admiration for Mao Zedong and

the Chinese-backed Vietcong paramilitary partisans. Of course, Schmitt’s positive

view relates neither to the brutalities of the “cultural revolution” nor to the political,

moral claims and content of Chinese-style communism. Instead, he claims that what

could still come to be historically decisive is the continuing legacy of Mao’s distinct-

ive model of carrying out both national (and by implication transnational) politics.

In particular, he endorsed this legacy’s distinctive theory and practice of legally con-

tainable and self-restricting “partisan warfare”: one which has positive implications

for Grossraum principles of transnational legal ordering. This model, together with

its military success, highlights how China’s cultural tradition has generally been that

of a continentally oriented and particularistic nation, rather than a maritime and

universalistic-oriented imperialist State akin, for example, to 19th century Britain.

42. Unlike Soviet Marxist-Leninism, the political orientation exemplified by

Maoist-style partisan struggle exhibits an earth-bound (or “telluric”) nationalism.

Equally compatible with Grossraum theory and practice, this orientation also exhi-

bits a principle of territorial distinction and self-restriction. Both these features

project the possibility of a pluralistic multi-polar legal order. He suggested that

the rise of Maoist China and its legacy contained the potential to create a wedge

within the bi-polar post-war world order of the Cold War. It does so by projecting

a basis for an alternative, more sensible organization of international law and polit-

ics. In particular, the trajectory created by the rise and, perhaps more decisively, the

later collapse of Maoism opened up a new spatial region. This, for Schmitt, has the

potential to displace the post-war domination of the world by the Soviet and US

empires and imperialistic ideologies, each claiming universal applicability and aspir-

ing to world domination. Both these ideological orientations have deployed pseudo-

17 Id.


universalistic ideological categories involving the spurious over-generalization of

these States’ own particular self-interests.

43. In short, Schmitt implies that post-Maoist China possesses an important

legacy stemming from both its hard-won and spatially grounded nationalism and

Maoism’s creation as an ultimately successful guerrilla warfare movement, not

only rooted in considerable indigenous support but also operating exclusively

within a specified region considered as a spatially restricted homeland.

44. Maoism’s politico-cultural legacy of partisan struggle has, according to

Schmitt, proved decisive in overcoming (or at least mitigating) many of the fatal

contradictions affecting the Marxist-Leninist ideology of the Soviet empire: an

ideology and repressive politics that had reduced much of Eastern Europe to a

fenced-in concentration and labour camp. In common with its twin sibling,

liberal capitalism, Marxism-Leninism’s universalistic orientation remained premised

upon the alleged “single truth” of a dogmatic ideology. In the case of Marxism-Len-

inism, this involved an ideology of “dialectical materialism” linked fatefully to a

form of cosmopolitan internationalism, whose practical realization endorsed, even

required, a global civil war—reduced to a rhetoric of “class struggle”—against the

US-led empire.

45. For Schmitt, Lenin had correctly recognized that all knowledge is based upon

the essentially particular material interests and orientation of specific social groups,

who are rooted in definite and historically parochial contexts. Because these inevit-

ably clash, the idea of a non-political understanding of international law, located

somehow “above” the realm of (geo)politics, or a strictly “non-political form” of

legal regulation of international relations by genuinely universal principles of law,

is entirely illusory. Yet, despite these partial insights, Leninism lost its way. It did

so by subordinating its insight of the inevitability of geopolitical tension, and

hence the ever-present possibility for transnational conflict, even armed conflict,

to a Marxist theory of absolute class warfare and class enmity falsely claiming uni-

versal applicability.

46. With little empirical justification, this theory posited its own definition of the

working class (“proletariat”) as somehow constituting a “universal class” containing

the hitherto suppressed essence of “humanity itself”. For Marxist-Leninist ideology,

linked to a supposedly “dialectical materialist” and teleological philosophy of

history, humanity is predestined to finally blossom by realizing its essential

“species being”. This, it is claimed, only becomes possible within a communist

society achieved through the final global overcoming of the alleged evils of capital-

ism. Armed struggle, according to this ideology, needs to fulfil a revolutionary

context where the need for both domestic and transnational law would itself grad-

ually “wither away”. Within this redemptive ideology, complete with a fairy story of

historical conflict culminating in a “happy ending” to (pre)history within a Utopian


communist society, the politics of class conflict and enmity became at least tempor-

arily absolutized.

47. As with other religious fundamentalisms of various kinds, Marxism-Lenin-

ism’s belief in the absolute righteousness and justice of its cause is problematic. It

dispels the possibility of “relative enmity” open to the possibility of compromise

with rival liberal (or illiberal) capitalist alternatives characteristic of social democrat-

ic movements. It also rules out the possibility of any acceptance of legal resolution of

disputes. Indeed, and mirroring US imperialism, Marxism-Leninism predefines

“class justice” as operating beyond both the traditional system of States and the

Eurocentric international legal order prevailing from 1648/1715. The very exist-

ence of any sector of the globe, even a small island State, governed by contrary prin-

ciples, is seen as an affront and continuing challenge to the “globalization” of its

imperialistic model.

48. By contrast, for Schmitt, China’s Maoist legacy includes a spatially grounded

and territorially oriented partisan struggle. This has included a nationalistically

oriented military repulsion of colonialists by irregular forms of resistance and

armed conflict. Both these elements exhibit both a military and a theoretical signifi-

cance. For Schmitt, the abstractly universalistic orientation of Marxist internation-

alism has, unlike the Maoist legacy, singularly failed to overcome its profound

tension with the enduring emotional significance of social relations of “belonging

to” the concretely lived space of a distinct homeland, a culturally defined territory

understood as homeland. The latter remains essentially and proudly particularistic,

territorially bordered and potentially pluralistic, and hence a counter-principle to

the imperialisms of Soviet- and US-led empires.18

49. On Schmitt’s reading, Maoism developed a novel ideology and practice of

partisan struggle which, over the two decades of its largely defensive partisan

warfare against Japanese colonialism, proved to be respectful of such contextual

spatial relations. The Maoist legacy promotes a spatially self-restricting orientation

of the classic defensive and nationalistic partisan tradition: one whose ambitions

were deliberately and necessarily confined to the expulsion of foreign occupiers

from one’s own specific homeland. This is a tradition stemming from the localized

struggles and irregular resistance of Spanish peasants against Napoleon’s French

occupiers, or—more recently—Tito’s ultimately successful resistance to German oc-

cupation of Yugoslavia during World War II. Bearers of this tradition remain rightly

suspicious of the abstract generalizations and universalizations that represent

18 Carl Schmitt, above n.14, 55–58. Cf. Marcus Llanque, Ein Trager des Politischen nach demEnde der Staatlichkeit: Der Partisan in Carl Schmitts politische Theorie, in HerfriedMunkler (ed.), Der Partisan: Theorie, Strategie, Gestalt, (Westdeutscher Verlag 1990), 61;Alberto Toscano, Carl Schmitt in Beijing: Partisanship, Geopolitics and the Demolitionof the Eurocentric world, 11(4) Postcolonial Studies (2008), 417; William Scheuerman,Carl Schmitt and the Road to Abu Ghraib, 13(1) Constellations (2006), 108.


essential ideological devices of both US imperialism and Marxism-Leninism

oriented towards securing global hegemony for themselves. As such, they are

better placed then either “liberal-democratic” or Marxist-oriented States to appreci-

ate the necessity for accepting the inevitable mediation of international law by geo-

political factors, and vice versa. Indeed, Schmitt claims:

The ideological conflict between Moscow and Peking, which has grown ever

stronger since 1962, has its deepest origin in the concretely varying reality of

true partisanship. In this respect, too, the theory of the partisan proves to be

the key to recognizing political reality.19

50. According to Schmitt, a post-Maoist China that remains respectful of its own

distinctive legacy has the potential to evolve into the “leading power” of a funda-

mentally distinctive Asian Grossraum: one rivalling both the Soviet and US

empires. If he is right, then, during the early 21st century, a Chinese-led East

Asian Grossraum may come to hold the global balance of power even in ways that

resemble the British Empire’s transnational role during much of the 19th century.20

51. By contrast, for Schmitt, the Soviet form of Marxist-Leninist experiment has

no such future. It has promoted a typically universalistic fantasy of a unified political

“unity of the earth”, with “humanity” allegedly blossoming following the defeat of

an “absolute” class enemy within industrialist capitalist society.21 The framework of

international law can successfully contain and regulate the relative and public

enmity that emerges from the constitution of the political distinction between

“allies”, “neutrals” and “enemies” grounded in national self-interest. However,

this has typically been cast aside by the total global war of Marxist-Leninist class an-

tagonism, for which the revolutionary end justifies all means necessary to achieve it.

As with Fascism, compliance with domestic legality can, at best, have a strategic and

tactical significance, and is certainly not considered by Marxist ideologists as a pol-

itical virtue in itself. The fundamentalism of this ideology exhibits a form of trans-

national global revolutionary politics which is fixated absolutely upon the

destruction of a projected class enemy and profoundly hostile even to the idea,

let alone the practice, of an international legal ordering: that is, of politics being

contained and regulated by an overarching framework of customs, principles and

settled practices.22

19 Carl Schmitt, above n.14, 61.

20 Danilo Zolo, The Re-emerging Notion of Empire, in Louiza Odysseos and Fabio Petito(eds.), The International Political Thought of Carl Schmitt (Routledge 2007), 154, 160–161.

21 Jorge E. Dotti, From Karl to Carl: Schmitt as a Reader of Marx, in Chantal Mouffe (ed.),The Challenge of Carl Schmitt (Verso 1999), 92.

22 Schmitt expressed considerable admiration for Lenin’s 1915 Notebooks and especially hiscommentary upon Clausewitz’s On War as containing a unique understanding of partisan-ship in warfare and politics.


52. By contrast, post-Maoist China, born of a more spatially grounded, populist,

even nationalistic, form of partisan struggle, and operating in a context where indus-

trialization has been accomplished largely under a modified communist political

system, is able to orient itself along a different path. According to Schmitt, what

is crucial is that modern China should be able to contribute towards “a set of Gross-raume that are rationally balanced both within and among one another”.23

53. Schmitt even quotes a poem Mao wrote, entitled Kunlun. It allegedly articu-

lates a pluralistic image of a new transnational legal order rooted in a regionalist prin-

ciple of ordering and spatial division: “If heaven were my garrison, I would draw my

word / 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.”24 On

Schmitt’s interpretation, here Mao anticipates a new Grossraum principle of global

legal ordering: one that is based upon a plurality of large-scale regional power

blocs. This type of order would enable legally ordered and containable forms of

enmity resistant to the absolute type of total class war characteristic of Marxism-Len-

inism which remains indifferent to those particularistic and spatially grounded

aspects of human life affirmed by Chinese and other forms of nationalism.

54. The rise of a post-Marxist, yet fundamentally and openly “illiberal”, type of

Chinese State, which has built upon, but also transformed, its Maoist legacy, may

have developed for itself the possibility of realizing a more pluralistic and openly

political transnational order. Indeed, during a published radio interview with the

journalist Joachim Schickel, Schmitt described China as “the last terrestrial or

land-based counterbalance” to imperialistic maritime powers (such as the USA

and the UK).25

55. In short, the type of renewed transnational order Schmitt’s international law

writings anticipate projects a small number of distinctive Grossraume capable of

superseding the uni-polar, or “one united world”, order of superpower imperialism.

56. According to Schmitt, a transformed and more realistic form of international

law will be needed to accommodate itself to the following aspects of a distinctly

Grossraum type of transnational order:

(1) A Franco/German-dominated continental European Grossraum;

(2) A Latin American federation in which Brazil plays the role of the leading

State;

(3) A South East Asian power bloc, led by the PRC;

(4) A Russian Grossraum continuing to operate as a scaled-down and post-com-

munist regional superpower embracing those former “satellite States” of the old

23 Carl Schmitt, above n.14, 58–59.

24 Id., 59.

25 See Joachim Schickel, Gesprache mit Carl Schmitt (Verve 1993), 28.


Soviet empire that have not or not yet integrated themselves into the European

Union/a Grossraum.26

57. As far as Schmitt’s regionalist model of international law and order is concerned,

the possibility of peaceful co-existence does not depend upon spatially uprooted

universalistic doctrines and institutions. Nor does it presuppose the United

Nations, or embryonic forms of world government and legal regulation of relations

of war and peace, trade and “human rights” centred upon these orientations and

institutions. This is because the neo-liberal ideologies of an American-dominated

West continue to supply the basic norms and frameworks of assumptions whose

pretensions to universality founder upon their contextual inappropriateness for

other regions. Instead, peaceful co-existence requires each power bloc to consistently

afford mutual respect to all the others, recognizing their right to both continued ex-

istence and to the exercise of extended sovereignty within generally (but not neces-

sarily fully accepted) territorial borders.

58. I want now to turn to how Schmitt addresses the position of China in the

context of the 20th-century rise of US “economic imperialism”. He insists that,

until the turn of the 20th century, the USA largely kept faith with the core non-

interventionist and regionalist principles of its own essentially anti-imperialistic

Monroe Doctrine. It thereby resisted the temptations of global interventionism

beyond its own continental power bloc of the American continent.

59. Schmitt claims, however, to have detected a rapid reversal of America’s pos-

ition. It followed the USA’s emergence as an increasingly economic imperialistic

power, aggressively deploying an ideology of “free trade”, “freedom of capital”

(and other ideological variants of the expression “freedom”). This ideology spear-

headed the American superpower’s global economic expansionism.27

60. The transformation of the Monroe Doctrine’s spatially conceived principle of

non-interference into a spatially undifferentiated general system of interference had

specific preconditions. Indeed, it was made possible by the fact that Woodrow

Wilson set aside the original Monroe principle in favour of the ideological

agenda of liberal democracy—together with the latter’s associated images, especially

those of “free” world trade and a “free” world market. Thus began a bitter struggle

of contestation over the Monroe Doctrine: one which pitted imperialistic and more

traditional Grossraum-respectful forces against each other. In Schmitt’s view, Theo-

dore Roosevelt, Woodrow Wilson and Franklin D. Roosevelt “in transforming a

specifically American spatial conception into a transnational and trans-ethnic

26 Ibid. See also Carl Schmitt’s essay, The Unity of the World, translated/quoted in FabioPetito, Against World Unity, in Louiza Odysseos and Fabio Petito, above n.20, 168.



world ideology, have attempted to use the Monroe Doctrine as an instrument for

the domination of the world market by Anglo-Saxon capital.”28

61. Operating in parallel with this ideological assault was the USA’s military

intervention within Europe during 1917, which proved decisive for the course of

World War I. This utter reversal of its earlier isolationist policies occurred under

the influence of President Wilson’s universalistic ideology of exporting an Ameri-

canized model of global order beyond the American continent, and into Asia in par-

ticular. Part of this ideology involved redefining the territory of China as an “open

door” for economic colonization by an aggressively predatory form of US capital. In

turn, this represented a variation of the more general ideological practice of defining

extra-American territory as an “open frontier”. For Schmitt, this expansion con-

flicted with the different methods that Japanese leaders were then deploying in re-

lation to China, particularly Manchuria:

After the [first] World War the Monroe Doctrine was applied to China in

such a way as to sustain the basic principle of the “open door” and of free cap-

italistic competition, as against the political claims to Japan.29

62. Schmitt also maintains that, at the start of the 20th century and for its own im-

perialistic reasons, the USA encouraged Japan to take on the role of an East Asian

superpower. This was to be largely at the expense of China, because Japan was to

exercise the role of a “leading power” within a spatially defined region akin to

that of the US Grossraum within the American continent under the Monroe

Doctrine:30

As long as Russia was England’s enemy, there were nevertheless no objections

to the deployment of an Asian Monroe Doctrine by Japan. As early as 1905,

[US] President Theodore Roosevelt, is supposed to have encouraged the Japa-

nese Viscount Kaneko to transfer the Monroe Doctrine to Asia. Roosevelt ob-

viously based [this suggestion] on the idea that such a transference would

ensure the economic development of East Asia by American capital, that is,

the application of the world-economic methods of Anglo-Saxon imperialism

to East Asia, especially to China. An East Asian Monroe Doctrine with this

sense and content would thus have been nothing other than the opening of

China for exploitation by Anglo-Saxon capital, that is, the transformation

of China into an American-English colony. This was perfectly acceptable.31


29 Id.

30 Carl Schmitt, The Grossraum Order of International Law with a Ban on Intervention for Spa-tially Foreign Powers: A Contribution to the Concept of Reich in International Law [1939–1941], in Timothy Nunan (ed.), Carl Schmitt: Writings on War (Polity 2011), 75, 89–90.



63. However, exhibiting the hypocrisy and double standards that are often charac-

teristic of US imperialism, this apparently “principled” position remained implicitly

conditional. One condition was that its practical results must continually serve the

current economic interests of American capital, particularly with respect to econom-

ic colonization of China. Hence, once changing patterns of international relations,

including the geopolitical realignment of Russia and Japanese territorial claims of

Manchuria, meant that this material function was no longer the case, then US

support for a Japanese-centred East Asian Grossraum abruptly reversed into outright

opposition. Far from being a progressive, post-imperialist principle of universal ap-

plication that led the rest of the world, US ideologists within international law writ-

ings rapidly reinterpreted the Monroe Doctrine’s core elements as somehow the

exclusive property of the USA. In turn, this regime could exempt itself from govern-

ance by such supposedly “universal” principles wherever this proved politically

expedient:

Yet no sooner did it become evident that there was an essential difference

between this Anglo-Saxon capital interest in China, on the one hand, and

Japan’s political claims upon Manchuria and [interest in] a reform and re-

organization of China, on the other, than the aforementioned literature

took up the cause and attempted in various ways to cast doubt upon the trans-

ferability of the Monroe Doctrine and the admissibility of a Japanese Monroe

Doctrine.32

64. Within the USA, international law scholars and political scientists were, accord-

ing to Schmitt, acting as the foremost propagandists for their regime’s ideological

reversal of stance. In line with their State’s imperial interests, they supplied a

number of ideological justifications in apparently no less “principled” terms than

those that were advanced before to support the very opposite case. However, this

time—and in keeping with a more general exploitation of semantic elasticity

within international treaties—these court scholars conveniently added that the

USA alone retained the right to be arbiter of the meaning, scope and applicability

of such supposedly “universal” international law principles:

These advocate with great energy the position that the Monroe Doctrine is a

monopoly of the United States of America, and that it cannot be transferred

to other political and geopolitical situations, or can only be so transferred with

the [express] permission and approval of the United States.33

65. According to Schmitt, the unstated and underlying premise behind the ideo-

logical defence of the USA’s rejection of an East Asian Grossraum was that “only

32 Id.

33 Id., 48.


economic-capitalistic imperialism American-style should have the right to appeal to

the Monroe Doctrine.”34 The imperialist subtext was that the USA is entitled to

advance its material interests by reference to the practical meaning of supposedly

universal legal, political and moral principles—unless and until these exhibit nega-

tive implications. Where such implications arise, these principles can then be rein-

terpreted strategically as essentially particularistic. In any event, the USA reserved to

itself the exclusive right to decide whether, in any particular case, these “principles”

are to be taken as either universally applicable or contextually specific.

66. From 1932, US foreign policy had finally replaced the now inconveniently

non-interventionist restraints, stemming from any reasonable interpretation of the

original Monroe Doctrine, with the aggressively imperialistic “Stimson Doctrine”.

Significantly, the latter was originally addressed to the governments of China and

Japan. According to this doctrine, any territorial changes within Asia, including

the creation of a Japanese-led Grossraum, would now be deemed legally invalid

unless and until they were expressly and unilaterally “recognized” by the USA.

Because the USA was intent on continuing the “open door” policy in China, it

informed the Japanese, following their military occupation of Manchuria, that it

would not:

Recognize any treaty or agreement which may impair the treaty rights of the

United States or its citizens in China, including those which relate to the sov-

ereignty, the independence, or the territorial and administrative integrity of

the Republic of China, or the international policy to China, commonly

known as the open door policy.35

67. The Stimson Doctrine thus asserted that the USA possessed an unrestricted,

even universal, right to deny recognition to any government that came to power

through means other than those favoured by current US constitutional doctrines.36

The irony of denying recognition to States created in a way that mimics the revolu-

tionary historical origins of the USA itself appeared to be lost on these ideologists.

The Stimson Doctrine also gave effect to earlier presidential statements justifying a

legally unrestrained US interventionism—as if this were a principle of international

law itself. Taken together, these developments helped open the door for US inter-

ventions around the globe justified by reference to law enforcement, even justifying

the USA’s involvement in the Korean war as a “police action”.37 In short, the

Stimson Doctrine firmly, if implicitly, established the idea that this State alone

remained entitled to sit in judgment upon all others—as a self-appointed global

34 Id., 50.

35 Id., 53 fn 8.

36 Carl Schmitt, above n.11, 298–299, 306–307.

37 Roland Axtmann, Humanity or Enmity? Carl Schmitt on International Politics, 44 Inter-national Politics (2007), 531.


judge of the legality and legitimacy, justice or injustice, of their actions; however,

and in keeping with imperialistic imperatives, without of course itself accepting

any reciprocal measure of legal obligation and accountability:38

The English-American claim to [the mantle of ] global judge [Weltenrichters]is expressed for example in the Stimson Doctrine, which reserves [for these

powers] the recognition or non-recognition of territorial alterations. . . . The

note from the American Secretary of State Stimson from the 7th of January

1932 to the governments of China and Japan includes the declaration that

the government of the United States will neither admit the legality of any

de facto situation nor recognize treaties concluded between Japan and

China which violate the treaty rights of the United States or of its citizens

in China.39

68. The subtext here is that a possible violation of US material interests anywhere in

the world is a matter for the USA alone to both decide and act upon. This is because

it defines such interests as global since the USA both embodies and rightly speaks for

humanity as such.40 For Schmitt, this unilateralist and anti-democratic ideological

worldview involves the taken-for-granted identification of Anglo-American interests

with those of international law as such. It was in this way that the device of selective

“recognition” (and hence “non-recognition”) of State borders, and of statehood

more generally, became part of the resources of US imperialism operating within

both international law and international relations.

69. At this time, US ideology in relation to Japan and China rested, according to

Schmitt, on an incoherent mixture of the premises of legal positivism and natural

law, each pushing in a different direction. More specifically, this ideology was

grounded in a status quo-oriented insistence upon the centrality of territorial own-

ership and respect for existing treaties reflecting the negotiated power of the parti-

cipants, and upon moral and legal principles rooted in its own neo-liberal

ideology but (mis)represented ideologically as somehow “universal”:

It rests upon a peculiar connection between simple argumentation from own-

ership and [from] the nature of treaties currently in force [Vertragslage] (pacta

sunt servanda), that is, [from] a bald treaty-positivism[, on the one hand,] and

[on the other] the basic ideological principles of a liberal democratic and

liberal-capitalist Weltanschauung [worldview].41


39 Carl Schmitt, above n.13, 48, 58 fn. 8


41 Id.


70. For present purposes, the crucial factor shaping these transformations in US

transnational law doctrines was the idea of China as an “open door” for economic

colonization either by means of Japanese cooperation as a US proxy, or in resistance

to Japanese foreign policies. Insofar as Japan remained willing to facilitate such

Anglo-American colonization and the securing of Chinese raw materials through

capitalistic market mechanisms, then its claims to regional superpower status,

akin to a “Japanese Monroe Doctrine”, would be recognized by the USA.

However, once Japan threatened, by means of the projection of its own political

and military power, to block American access to such raw materials in violation

of the claims and requirements of Anglo-American neo-liberalism, then, according

to US ideologists within international law, the situation was reversed. In particular,

Japan forfeited its rights to be recognized under international law as a regional

superpower.

71. For Schmitt, such rhetorical arguments seek, for their own purposes, to firmly

distinguish between the USA’s Grossraum hegemonic control over Latin America

(citing Mexico as a typical example), and analogous Japanese claims and interven-

tions within East Asia concerning the Manchurian region. On close examination,

the US stance here and its would-be justification in international law terms was

clearly problematic, not least as a rationalization of hypocrisy and double standards.

For example, these arguments conveniently gloss over clear historical similarities

concerning the role of US military intervention in the “emergence of the republics

of Cuba and Panama”. These, according to Schmitt, were similar in kind to Japan’s

later projection of military and political “hard power” within Eastern Asia during

the 1920s and 1930s.42 Acting like a monopolistic corporation jealously defending

its inventions through international patent and copyright litigation, the USA

claimed that it alone had the “right” to emulate US-style imperialistic practices.

72. Schmitt’s critique of the American rationale for this denial of a Japanese-led

East Asian Grossraum highlights how material gains over China’s raw materials

secured through economic means were being ideologically defined as essentially

“peaceful” and “non-political”. By contrast, Japan’s more openly political and mili-

tary methods of securing the same goals were judged as unacceptably geopolitical in

nature. Schmitt emphasizes the irony that such one-sided ideological interpretations

by US ideologists, which apparently promote pacifist and humanitarian agendas,

themselves signify an opening salvo of “just war” propaganda: one that, in turn,

has operated as a preface to actual military conflict justified in terms of the

USA’s moral superiority:

Here one sees with what self-evidence the liberal-capitalistic interpretation of

economic imperialism depicts its specific methods of expansion and domin-

ation as essentially peaceful and “natural”, not only in order to deprive the



political opponent of [any appeal to] the Monroe Doctrine and to reserve [this

doctrine] exclusively [beschlagnahmen] for itself, but also as intellectual arma-

ment for just war.43

73. The upshot of Schmitt’s critical and realist analysis of the historical relations

between China, Japan and the USA, is to encourage a critical stance to the

latter’s general tendency to advance supposedly universalistic arguments relating

to neo-liberal variants of “human rights”, “freedom”, “democracy” and even

“peace”. It draws attention to the operation of imperialistic subtexts and monopol-

istic power claims, even within the apparently technical and non-political sphere of

international law doctrine.

74. He further suggests that one of the USA’s pre-imperialist international law

doctrines, the 1823 Monroe Doctrine, understood as a possible blueprint for a fed-

erated regional world order, contains principles of continuing relevance to the post-

Cold War era. Whilst the original version of this doctrine exhibited a “reasonable

logic of spatial separation”, the later imperialistic policies that displaced it repre-

sented the USA’s “ideological claim to world interference”.44

75. The debate over the international legal significance of the Monroe Doctrine,

both in itself and as a precedent for the theory and practice of Grossraum more gen-

erally, shows that what is at issue here is “elementary question of an international

legal coexistence of peoples and states”. These confront the alternative of an oppos-

ition between a “clear spatial order based on the non-intervention of extra-regional

powers, and a universalistic ideology which transforms the entire Earth into the

battlefield for its interventions”.45

V. Grossraum Analysis46

76. The core research question is whether Schmitt’s Grossraum analysis allows us to

better understand today’s situation where it is not States considered as self-sufficient

43 Id., 51.

44 Id., 52.

45 Id.

46 Carl Schmitt’s collection of essays Staat, Grossraum, Nomos: Arbeiten aus den Jahren 1916–1969 (G. Maschke (ed.), Duncker & Humblot 1995) includes the following noteworthystudies: Raum und Grossraum im Volkerrecht, ibid., 234; Volkerrechtliche Grossraumord-nung, ibid., 269; Die Raumrevolution: durch den totalen Krieg zu einem totalen Frieden,ibid., 388; and Die letzte globale Linie, ibid., 441. See also Carl Schmitt, Grossraumgegen Universalismus: Der Volkerrechtliche Kampf um die Monroedoktrin, 6 Zeitschriftder Akademie fur Deutsches Recht (1939), 333. See also Mathias Schmoeckel’s studies:DieGrossraumtheorie (Duncker & Humblot 1994) and Ortung und Ordnung. Carl Schmitt imNationalsozialismus, 51 Aus Politik und Zeitgeschichte (1996), 34. For a helpful and criticaloverview, see Peter Stirk, Carl Schmitt’s Volkerrechtliche Grossraumordnung, 20(2) Historyof Political Thought (1999), 357.


entities but rather assemblages of States brought together in regional power blocs, or

“grossraume”, that are engaged in competitive relations with each other.

77. Schmitt certainly claims that the concept of a Grossraum, first exhibited

within international law through the core idea of the original US Monroe Doctrine

of 1823—i.e., that of non-intervention by extra-regional powers—is “translatable to

other spaces, other historical situations, and other friend-enemy groupings”47 He

invokes the Monroe Doctrine as an early precedent and illustration of a relatively

successful (if short-lived) Grossraum principle, albeit not one that could not be

mechanically transplanted into, say, a European context without modification.

V.A. The historical eclipse of the State

78. Schmitt developed his Grossraum theory from 1939–1941, with modifications

and nuances contained in various post-war publications, particularly The Nomos ofthe Earth. The historical context of Schmitt’s argument includes the claim that, by at

least the third decade of the 20th century, the era of independent nation States has

largely come to a close.48 The traditional system of so-called “international” law—

but actually Eurocentric transnational law, which focuses upon relations between

and among formally equal nation States—has been eclipsed. It has been partly over-

taken by a historical reality that requires a focus upon relations between and among

different Grossraume—understood as regional power-blocs.49 This eclipse is hap-

pening for a variety of technological, military and geopolitical reasons, including

imperialistic forms of Americanization disguised strategically as “liberalization”

(the “freeing of markets”) and “globalization”. And yet, at the same time, the demo-

cratic idea of a distinct people’s right to exercise political self-determination has

become increasingly entrenched. Schmitt’s key concern is that forms of US imperi-

alism deploying universalistic rhetoric of “freedom” actually operate, in practice, to

diminish the collective freedom of nation States to determine for themselves their

chosen modes of government and principles of both political and economic

organization.

79. Schmitt’s Grossraum analysis is not, and for reasons already discussed, essen-

tially cannot be, politically neutral. On the contrary, it is specifically geared up to

combat this imperialistic form of assimilation that diminishes a people’s right to ex-

ercise political self-determination and popular sovereignty. Against the familiar ar-

rogance of imperialist disregard for the integrity of other States expressed in a stance

of righteous unilateralism concealing its own hegemonic power, Schmitt’s

47 Carl Schmitt, above n.30, 75, 88.


49 George Schwab, Contextualizing Carl Schmitt’s concept of “Grossraum”, 19 History ofEuropean Ideas (1994) 185, 187.


Grossraum concept projects “the principle of national respect” as a doctrine that

ought to operate as a key doctrine of international law.50

80. Hence, a Schmittian could argue that the Grossraum element has to come to

the fore as a realistic and pluralistic alternative to imperialistic assimilation into a

US-led unipolar world order.51 The latter promotes an unmediated liberal individu-

alism, together with an equally unmediated collectivism of humanity as such. This

takes place at the expense of various intermediate and mid-level categories, such as

highly particularistic national identities, cultural traditions, subcultures and

“peoples”.52

81. Schmitt insists that acceptance of Grossraum analysis is a precondition for a

viable and realistic form of international law scholarship: one that is receptive to

substantive spatial questions and capable of addressing a demarcated or fenced-off

coexistence on a sensibly divided-up planet.53 Unlike abstractly universalistic and

cosmopolitan alternatives devoid of spatial differentiations, such analysis is able to

both recognize and adjust itself to geopolitical tendencies that first emerged

within the early 20th-century context. Here, according to Schmitt, “several differ-

ence spheres (Grossraume) of international law appeared on the scene, at the same

time that the great problem of a new spatial order of the earth from the West—

from America—became evident”.54 Indeed, whilst the Monroe Doctrine provided

an early indication of the shape and nature of “the idea of international law specific

to a Grossraum”, this innovation was not at this time widely registered or adopted

within other continents, least of all within Africa, Europe and Asia.55

82. According to Schmitt, Grossraum analysis can be usefully applied to the

ongoing consequences of what he considers to have been a 20th-century revolution

in spatial awareness and imagination. The implications of this transformation have

been analogous to what occurred during the 16th and 17th centuries, stemming

from both various scientific insights and the Europeans’ “discovery” of what was,

for them, “the New World”.56 We thus need to interpret Grossraum analysis less

as an abstract “theoretical model”, than as an effort to come to terms with

50 Carl Schmitt, Volkerrechtliche Grossraum ordnung mit Interventions verbot fur raumfremdeMachte (2nd edn. Duncker & Humblot 1941), 71; William Scheuerman, above n.4, 144.

51 Mika Luoma-aho, Geopolitics and Grosspolitics from Carl Schmitt to E H Carr and JamesBurnham, in Louiza Odysseos and Fabio Petito, above n.20, 36, 41.

52 Carl Schmitt, Die Wendung zum diskriminierende Kriegsbegriff (Duncker & Humblot1938); Carl Schmitt, above n.11, 269–275.

53 William Hooker, Carl Schmitt’s International Thought: Order and Orientation (CUP2009), ch. 6.


55 Id. On Schmitt’s analysis of this Doctrine, see Peter Stirk, above n.46, 364. For a critique ofSchmitt’s alleged distortion of the Monroe Doctrine, see Lothar Gruchmann, Nationalsozial-istiche Grossraumordnung (Verlag 1962).

56 Carl Schmitt, above n.11, 313–322; William Hooker, above n.53, 142–143.


empirically ascertainable historical trends. Such analysis seeks to clarify these trends’

profound implications for our interpretation of the meaning, scope and rationale of

international law and transnational relations within an increasingly post-statist

epoch.57 Here, the 19th-century model of the sovereign State has, according to

Schmitt, been increasingly “dethroned” by 20th-century developments—and

even, in some respects, made “impotent” and “obsolete”.58 In this new historical

context, scholarship needs to recognize that it is the actions of regional power

blocs functioning under the hegemonic control of a dominant State that have

become the de facto creators of international law.

83. Here, it follows that traditional and still dominant “interstate ways of thinking”

within international law scholarship, whose spatial concern is focused exclusively upon

State territory, have now become unacceptably “conservative”, even anachronistic.59 In

response, Schmittian Grossraum theory seeks to accomplish its central cognitive goal of

providing an adequate model for interpreting the meaning and implications of con-

temporary trends by articulating reworked categories and “ordering principles”.

These principles appear more appropriate to such historical trends than either trad-

itional—but now outdated—State-based approaches, which are predicated on the

self-sufficient sovereignty of individual States, or imperialistic superpower approaches

that, for reasons already discussed, exhibit contradictory tendencies.

84. The abstract universalistic orientation of such imperialistic approaches also

disregards concrete spatial relations and territorial borders altogether. It does so

by interpreting the world beyond its own borders as an “open frontier” for its

legally unrestrainable intervention. It thereby misses out on what merits particular

recognition as key themes for international law scholarship.60

85. In one sense at least, Grossraum analysis of concrete and extended spatial

orders seeks what could be called a “third way”: one that is irreducible to the famil-

iar, if false, either/or alternatives between State-centric and imperialistic orienta-

tions. Schmitt further argues that, by the mid to late 1920s, international politics

had begun to change to the point where a spatial reordering upon the basis of a

small number of Grossraume largely held in equilibrium by a balance of power,

had become a real possibility.61

86. His Volkerrechtliche Grossraum ordnung claims that the traditional Eurocentric

order underlying international law—that is, relations between and among sovereign

States—was by the mid-1920s already becoming superseded by relations between

and among a small number of sovereign Grossraume.62 In turn, this trend anticipates

57 Carl Schmitt, above n.13, 112; Carl Schmitt, above n.11, 211.

58 Carl Schmitt, above n.6, Preface; Carl Schmitt, above n.30, 79, 104, 112.


60 Carl Schmitt, above n.30, 109; Peter Stirk, above n.46, 364.

61 Mika Luoma-aho, above n.51, 40–41.

62 Carl Schmitt, above n.6, 76–77, 81, 104.


the possibility of a post-imperialist and pluralistic-regionalist world order: one that

includes, for example, a balance of power between central Asian, pan-American,

European and pan-Arab, Grossraume.63

87. It is arguable that Schmitt’s Grossraum theory’s recognition of the combin-

ation of the complete exclusion of “foreign” intervention from powers located

outside the Grossraum in question, and the presence of a predominant State directly

exercising hegemonic power and embodying a “political idea” radiating outwards,

constitutes the essence of his new and realistic principle of international law and

practice of international relations.64 Indeed, he suggests that adoption of his

Grossraum thinking is necessary to pave the way for a significant change in the

theory and practice of international law within a world-historical era where the via-

bility of single, individual nation States, with each acting on its own initiative, can

no longer be relied upon as a grounding.65 He draws a sharp contrast between the

defensive, even anti-imperialist, role originally played by the US Monroe Doctrine

from 1823 to 1890 (when South American States were threatened with re-coloniza-

tion by European powers), and what he takes to be the sham universalism and im-

perialistic orientation of both liberal-capitalist and communist forms of global

domination that have replaced the doctrine’s key principles previously discussed.

88. As Hooker recognizes, Schmitt’s conception of Grossraum is expressly particu-

laristic and pluralistic, that is, a “counterpoise to the dangerous ascent of liberal uni-

versalism”.66 The latter undermines every rational demarcation and distinction.

Perhaps following suitable adaptation, aspects of the counter-imperialist dimension

of Schmitt’s Grossraum theory, which clearly aspires to possess applicability to other

geographical contexts within our late modern age, can provide a more interesting

way of addressing, for example, the “right of self-determination” in a post-statist

epoch? To avoid misunderstanding, Schmitt’s endorsement of the Monroe Doctrine

is not an advocacy of an uncritical and exact transposition of this measure to very

different contemporary contexts. After all, historical truths can only be true once.

Instead, such advocacy represents an argument relating to the current relevance of

its underlying core principles relating to the future possibilities of a spatially

grounded and demarcated regionalism.67 One possibility here is to recast and

ground this future project in terms of a citizens’ democratic entitlement to

belong to spatially grounded processes of political will-formation both within,

but also extending beyond, the frontiers of traditional national States.

63 Carl Schmitt, above n.30, 109; William Hooker, above n.53, 151–152.

64 Carl Schmitt, above n.30, 109–111; William Hooker, above n.53, 136–138; Mika Luoma-aho, above n.51, 40–41.


66 William Hooker, above n.53, 133.

67 G.L. Ulmen, Translator’s Introduction, in Carl Schmitt, above n.11, 23; Mika Luoma-aho,above n.51, 40–41.


89. Whatever its author’s original intentions and undisclosed immediate objec-

tives,68 Schmitt’s Grossraum concept is certainly articulated in wider theoretical

terms as a “generally applicable” theoretical conception.69 Following the American

victory in the Cold War and the collapse of the credibility of the Marxist alternative,

Schmitt’s theory has been attracting renewed interest.70 Despite some occasionally

internally inconsistent formulations, which are reflective of his immediate biograph-

ical situation within Nazi Germany,71 Schmitt’s Grossraum notion arguably remains

a central category for a distinctly pluralistic and self-restraining form of international

law scholarship capable of capturing key aspects of our contemporary reality.

Indeed, it is clearly designed to expand the State-centred and intra-State system

of traditional international law to include concrete relations between a small

numbers of Grossraume.

V.B. Contemporary relevance

90. Schmitt insists that the future shape of international law will be determined by

real global choices that need to be made between universalistic and pluralistic orien-

tations and categories, and between superpower monopoly and a “polypoly” (or

pluralism) of co-existing Grossraume.72 Indeed, his post-war writings set out and

discuss three alternative scenarios:

(1) The reiteration of bipolar conflict between rival universalist movements, akin

to the Cold War but, perhaps, with different parties.

(2) The complete triumph of US imperialism in establishing a “unipolar world

order” from which national sovereignty, and thus a politically organized

people’s right to self-determination, has been substantially displaced.

(3) The displacement of a superpower-dominated world order by a newly emer-

ging regional and spatial pluralistic order of different Grossraume.

91. For Schmitt, the second scenario entails a universal American empire as a final

victory of the dominance of economy and technology, together with their bearers,

68 Vagt Detlev, International Law in the Third Reich, 84 AJIL (1990), 661; Michael Salter,Neo-Fascist Legal Theory on Trial: An Interpretation of Carl Schmitt’s Defence at Nurem-berg from the Perspective of Franz Neumann’s Critical Theory of Law, 5 Ratio Juris (1999),161.


70 Chantal Mouffe, Schmitt’s Vision of a Multipolar World Order, in Rasch (ed.), Special Issueon Schmitt’s Nomos of the Earth, 104 South Atlantic Quarterly (2005), 245; WilliamHooker, above n.53, ch. 6; Mika Luoma-aho, above n.51.

71 There are some very occasional and probably inessential references to volk-nationalistic ideol-ogy of “blood and soil” which pander to the official Nazi ideology that dominated this fieldin 1932–1942, but which are contradicted by the main cultural and anti-essentialist thrust ofthe remainder.

72 Carl Schmitt, above n.11, 354–355.


over the rest of the world. In his last major article, published in 1978, Schmitt con-

cluded that this alternative, an industrial world appropriation involving the subju-

gation of all the industries of the world under one imperial power policing the globe

in its own interests, was the most likely alternative: “The day world politics comes to

the earth, it will be transformed into a world police power.”73

92. Schmittian Grossraum analysis is, for reasons already explained, intrinsically

and necessarily hostile to a superpower-dominated world order, regarding such

domination as essentially and unacceptably imperialistic. Furthermore, the second

option of the reiteration of the bipolar division of the Cold War has now clearly

ended, and does not therefore merit further discussion. The third option of a plur-

ality of Grossraume operating within the context of an overarching balance of power

and with each regional power bloc respecting the integrity the others, is clearly pref-

erable for the pluralistic regionalism of a Schmittian perspective. It entails the evo-

lution of an essentially pluralistic type of world order supportive of principles of

political self-determination. Following a “dynamics of pluralization”, this would

take the form of a “pluriverse” of “several independent Grossraume”: pan-European,

pan-Arab etc.

93. In his final work, Schmitt clarified the nature of this pluralistic order. A plur-

iverse of this kind would consist of a structure of territorial divisions between a

limited number of large Grossraume—each of which would recognize the others’ le-

gitimacy and right to exist as self-determining peoples free from external interven-

tion.74 This pluriverse would help constitute a renewed equilibrium and balance of

power within international affairs: one that would itself constitute a “new order of

the earth”.75 The result would still be a global order regulated by international law.

However, in a clear reference to Anglo-American imperialism, “not one that is sus-

tained and controlled by a hegemonic combination of sea and air power”.76

94. In effect, Schmitt projects the possibility of a post-imperial and “multi-polar

world order”, a “pluriverse” of regional power blocs akin—within a very different

historical context—to that of the American continent under the original Monroe

Doctrine as this had operated between 1823 and 1900: that is, prior to its degrad-

ation into an imperialistic device justifying military intervention outside of the

context of a pan-American Grossraum. During this near 80-year period, the doctrine

had largely operated as a voluntary, essentially defensive and mutually beneficial,

protectorate arrangement grounded in the perceived regional security needs and

orientation of a single continental reality. By contrast, since around 1900, but espe-

cially from 1917 onward, US foreign policy, according to Schmitt, had transformed

73 Carl Schmitt, The Legal World Revolution, 72 Telos (1987), 73, 80; Marti Koskenniemi,The Gentle Civilizer of Nations (CUP 2001), 420.

74 Marti Koskenniemi, above n.73, 420.


76 Id., 355.


this doctrine into an imperialistic, pan-interventionist world ideology, interfering

with everything under humanitarian pretences.

95. Under a Schmittian Grossraum arrangement, a major regional power has to

take enhanced responsibility for providing effective regional defence and economic

coordination, whilst—as a precondition for its continued legitimacy—still respect-

ing remaining aspects of the sovereignty of member States.77 It was the USA of the

19th century that—in a nutshell—provided a broadly applicable organizational

blueprint and rationale for this world-historical model.

96. According to Schmitt, for both continental Europe and East Asia to gain sig-

nificant prestige in world affairs, their involvement in the geopolitics of internation-

al relations must become that of an effective counter-weight to the would-be

universalistic imperialism of both the USA and the former Soviet-controlled

power bloc (the Warsaw Pact). This could mean re-constituting themselves as a re-

gional Grossraum, treating the Monroe Doctrine—rather than either the 19th-

century type of European colonial military conquest, occupation and annexation

or Wilsonian liberalism—as their blueprint and model.78 Such a development

would allow, for example, a possibly federated European community to effectively

resist de facto imperialist powers.79 Both regions need to learn important lessons

from the wrong turn the USA took at the end of the 19th century: the displacement

of the Monroe Doctrine by an evangelical and universalistic form of liberal

cosmopolitanism.80

97. Schmitt insists that in terms of the establishment of a viable global order, the

third pluralistic option set out above is the most rational exit route out of the con-

temporary problems stemming from forms of US imperialistic domination. The

latter has spawned multiple forms of resistance ranging from anti-capitalist protests

through to terrorist campaigns in the name of political Islam. However, Schmitt’s

preference for the Grossraum/regionalist option only holds good if two conditions

can be fully met: the Grossraume themselves must be properly and meaningfully dif-

ferentiated from one another according to real and decisive differences in their cul-

tural traditions. In practice, this might result in leaving a number of “marginal”

States, such as Turkey, Cyprus or the Philippines, unattached to any particular

Grossraum because their national cultures combine, for example, two or more in-

compatible regional traditions. Secondly, according to Schmitt, each Grossraummust be internally unified not by military force and State repression working

from the top downwards, but rather according to an overarching and widely

accepted political idea, such as “European unity” or “Asian values”, working

77 Carl Schmitt, above n.30, 85; William Rasch, Enmity as a Structuring Principle, 104 SouthAtlantic Quarterly (2005), 253, 261; George Schwab, above n.49, 186.



80 Mika Luoma-aho, above n.51, 40–41.


from the bottom upwards.81 Schmitt’s revival of the promise contained in the ori-

ginal (that is 1823–1900 Grossraum-related) version of the Monroe Doctrine as, in

part, a possible blueprint of principles for a post-imperialist form of international

law, is best understood in this light.

98. Schmitt suggests that international law scholarship could usefully embrace his

Grossraum theory in an express manner. This would contribute significantly to the

challenge of effectively contesting US imperialism both as a worthwhile goal in itself

and as a way of overcoming some of the negative consequences of global instability

and conflict that stem from any form of superpower domination. In particular, he

argues that the reduction in the number and intensity of armed conflicts cannot be

achieved through the non-spatial and universalistic approaches and agendas pro-

moted by US imperialism. On the contrary, these tend to be prove counter-product-

ive by intensifying conflicts through the demonization and criminalization of

(geo)political enemies and the related elevation of heightened military power into

a presumed moral/legal superiority—in which warfare is (badly) disguised as inter-

national law enforcement.82

99. What is needed, instead, is a revival of democratically legitimate forms of

regional integration, founded upon a pluralistic and multi-lateralist orientation,

and giving effect to principles of mutual respect. Schmitt’s theory and the potential

regional acceptance of the practice of Grossraum form an integral part of this

revival.83 From this perspective, it is arguable that the extension and application

of Grossraum theory within an associated multi-polar framework can be considered

to be a real alternative to a type of American imperialism claiming world power.84

However, it would also require international law scholarship to reformulate classic

positivist doctrines, which are centred upon individual nation States, to embrace

relations between different Grossraume as a central theme. The thrust of Schmitt’s

suggestion remains anti-imperialist, insofar as Schmitt considered the inter-war

years following the Treaty of Versailles as an epoch of expanding US-led imperial-

ism, when international law was being reshaped in the opposite direction according

to requirements of Wilsonian universalism—a tendency that escalated following the

Allied military victory of 1945.

VI. Conclusion

100. In short, Schmitt’s Grossraum conception refers to an area protected and, in a

sense, dominated by a major regional power which reserves to itself the decisive role

81 Carl Schmitt, above n.11, 355; Carl Schmitt, Die Einheit der Welt, 6 Merkur (1952), 505.

82 Carl Schmitt, above n. 11, 321.

83 Danilo Zolo, Cosmopolis: Prospects for World Government (Polity 2007), 160.

84 G.L. Ulmen, above n 67, 28.


in determining the meaning and scope of applicable principles through the open

and direct exercise of its executive authority. The latter embodies a distinct “political

idea” with which the other member States broadly identify and which they accept as

legitimate on the basis of their overlapping cultural traditions and aspirations: some-

thing which is vital to this idea’s effectiveness.85 Schmitt’s principle of Grossraum as

a pluralistic and regionalist model of transnational law, with a defensive anti-imperi-

alistic orientation, claims to offer a founding conception for the theory and practice

of both international law and international relations. It engages with a historical

context where traditional models of self-sufficient national sovereignty have, he

claims, become largely eclipsed.

101. It also seeks to illustrate the benefits of recovering the politics of spatiality

within transnational legal scholarship at both already constituted and constitutive

levels and processes. Acceptance of Schmittian pluralism and its hostility to US im-

perialistic universalism bring with it a need for theorizing spatial relations as an

outcome of concrete geopolitical processes. Whilst Schmitt’s analysis has consider-

able plausibility, there is still much that remains unfinished and merits critical revi-

sion before it can be fully accepted as a viable alternative to more conventional

orientations within transnational legal scholarship. What is needed is a series of

contemporary case studies, including within the East Asian region, that take each

strand of Schmittian Grossraum theory and test its claims against contemporary real-

ities emphasizing those areas where additional points need to be taken into account

and where the theory requires considerable supplementation and contemporary

illustration.

85 William Hooker, above n.53, 134.


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