Jiang Shigong on Commerce and Human Rights, Part Two

Jiang Shigong, “Commerce and Human Rights (Part Two)—Sino-American Competition in the Context of World Empire”[1]
 
Introduction and Translation by David Ownby
 
Introduction
 
Jiang Shigong (b. 1967) is a professor of law at Peking University, a prominent member of China’s New Left, and a skilled defender of Xi Jinping Thought.  Several of his texts have been translated on published on this site, treating themes such as the nature of Xi Jinping Thought, American foreign policy, the historical and contemporary importance of empire, the Hong Kong issue, and the arrest of Meng Wanzhou.  I often disagree with Jiang, but nonetheless find him to be a subtle thinker and a persuasive writer.  Of course, Jiang is not trying to convince me of anything; his arguments are directed at his fellow Chinese intellectuals, many of whom are Liberals.
 
The text translated here is inspired by the Biden administrations attempt to take the moral high ground by criticizing China on human rights grounds, thus undoing some of the damage of Trump’s “America First” foreign policy, and hoping to rally the world against China.  Jiang, who has already written extensively on America’s trade- and capital-driven world empire, weaves the human rights theme into his narrative, offering his interpretation of the “roots of American behavior.”
​
Jiang’s argument is fairly straight forward, and based in notions of “first-generation” and “second-generation” notions of human rights. 

First-generation human rights grew out of the eighteenth and nineteenth-century establishment of the British empire, and defended the freedom to trade and the right to private property, “negative freedoms” that sought to constrain government control of individual behavior in public, commercial contexts.  Second-generation freedoms were the product of the French Revolution, and emphasized égalité and fraternité, “positive freedoms” often linked to collective or collectivist projects in which governmental power is employed to achieve these projects, which often take on national form.  Jiang makes no claim to have invented these concepts; they are most often attributed to the Czech-French thinker Karel Vašák (1929-2015), who in fact talked about three generations of human rights theories.
 
Jiang notes that at the time of its founding, America inherited both visions of human rights.  England was the United States’ principle model in terms of basic political and economic structures and policies, but also rebelled against Britain, rejecting its status as a colony.  Throughout the rest of American history, it would employ the two generations of human rights theories according to the needs of the moment, encouraging free markets and domestic expansion in the nineteenth century even as it protected infant industries.  Other times, the two varieties were employed in a sort of one-two punch, as when the U.S. used second-generation human rights claims to encourage the independence of the colonies of other countries’ empires, only to follow up by playing the “Open Door” card and demanding access to the economies of the newly independent countries for American trade and capital. 

Biden’s current China policy is completely consistent with this history, Jiang insists, and Biden’s goal is to press human rights claims against China merely to safeguard the interests of America’s world empire.  Americans may not realize the contradictions in their own thinking about human rights, Jiang argues, but Chinese should not be led astray by lofty talk about Xinjiang and Hong Kong, because the final issue is money and power, after all.
 
Scholars of American foreign policy or of the history of human rights might well quibble with any number of Jiang’s characterizations and arguments, but I suspect that in the Chinese context, his text is quite convincing.  There has been a fair bit of discussion in China about what is new and different about Biden’s China policy (see here for one example), and much nervousness about the future of Sino-American relations.  In making an argument that puts the Biden doctrine in historical terms, Jiang seeks to take some of the urgency out of the issue.

As the title suggests, the text translated here is part two of a two part series (see part one here).  Part two takes up questions concerning GATT, the WHO, “free trade” versus “fair trade” and issues of intellectual property.  Throughout, Jiang’s argument is that U.S. claims concerning “fairness” and “human rights” are mere smokescreens for the naked pursuit of American interest.  In a concluding section, he suggests that China’s rise will pull the world back from the brink and help to achieve a healthy balance between first- and second-generation human rights theories.  As if often the case in such texts, Jiang devotes much more attention to the evil machinations of the Americans than to China, whose virtues are treated in more cursory fashion.
 
Favorite Quotes
 
Since the U.S. hoped to integrate the vast number of developing countries into its economic system through the GATT “club,” and to isolate the socialist camp with Cold War tactics, it had to withstand the pressure of developing countries criticizing and resisting certain ideas put forward by the U.S. in trade negotiations, and more importantly, to face the challenges posed by the economic revival of the EU and Japan, which the U.S. had promoted to win the Cold War.  In response to these challenges, the “U.S. Trade Expansion Act of 1962” gave the President the power to take retaliatory measures should the U.S. be faced by "unreasonable" or "unfair" trade measures, and in 1974, the act was further amended to introduce the concepts of "fair but harmful" trade and "unfair trade," calling goods that meet the principles of fair trade but do not accord with U.S. interests "harmful."

This marked a major adjustment in U.S. trade policy: in terms of strategic discourse on trade legitimacy, the emphasis shifted from "free trade" to "fair trade."  In institutional terms, this led to an increasing shift towards unilateralism, which was outside the framework of GATT negotiations.  Using their economic power, the U.S. continuously revised its domestic trade laws so as to give the government ever stronger measures of trade retaliation and sanctions to force other countries to accept various so-called "fair trade" demands made by the United States. As a result, we note the gradual emergence of an organic interaction between U.S. domestic trade law and international treaties such as GATT, and between unilateralism and multilateralism.
 
At the outset, "fair trade" was a critique of the inequality caused by "free trade" by developing countries based on second-generation human rights theory, but it has now become an American criticism of government involvement in trade (including subsidies, state-owned enterprises, labor rights, ecological damage, etc.) based on U.S. ideas of “free trade.”  There are two different understandings of "fair trade,” and this difference is closely related to what are commonly referred to as "substantive justice" and "procedural justice.”  If we measure "free trade" by the objective extent to which trade barriers are kept low, then the concept has no universally accepted standard, because the strong and the weak have different understandings of fairness. When the strong and the weak compete, the strong emphasize a common starting line, i.e., a "fair competition" based entirely on market freedom, which means that any government assistance to trade is "unfair trade.” 

This kind of "fairness" is actually the embodiment of the concept of procedural justice in the field of international trade. However, for the weak, such laissez-faire free trade amounts to the plunder of developing countries, a process which will permanently consign developing countries to a marginal position in which their dependence precludes their development; for this reason, genuine "fair trade" must recognize the "right to development" of developing countries to use government power to promote economic development, so as to achieve equality between countries, and such "fair trade" fully embodies the concept of substantive justice.
 
"Free trade" and "fair trade" are merely two different faces of the United States when confronted with different situations in the historical process of promoting world empire, and both are useful tools in the toolbox of U.S. trade policy. The United States can always define what "fair trade" means according to its own interests, and can choose whether to use "free trade" or "fair trade" as its justification for different opponents and different situations.  For example, during the Reagan era, the United States adopted a laissez-faire policy and restored the idea of "free trade," but in his second term, the huge foreign trade deficit led Reagan to change direction and demand "fair trade.” It was Reagan who formally introduced the concept of "free and fair trade" in his “1985 Trade Policy Action Plan” and formed the Trade Countermeasures Group, which established the arguments and legal logic to deal with trade issues.

In the post-Cold War era, the U.S. used unipolar hegemony to accelerate the pace of world empire building: on the one hand, it employed neoliberal theories to expand U.S. economic power.   At the same time, in order to ensure the U.S. ability to control the global economy, the Clinton administration even made "economic security" the primary goal of U.S. foreign policy, and publicly declared "fair trade" as part of the national economic strategy to expand trade. In short, "free trade" and "fair trade" are two parallel tracks in the construction of the U.S. world empire, both aiming to fight against competitors and ensure U.S. control over the world economy.   On the one hand, "free trade" is used to attract and control developing countries, while on the other, "fair trade" is used to deal with the challenges of the EU, developed countries in East Asia and even emerging economies such as the BRICs.
 
To briefly summarize the discussion in the two parts of this essay, we can see that since the development of modern human rights theory in Europe, five "ideal types"  have evolved around the concept of human rights. The first is the historical Adam Smith-style British model, a laissez-faire model based on first-generation human rights theory, with a parliamentary system dominated by the merchant class on the domestic front and a world imperial system of free trade outside. The second is the Stalinist model, the opposite of the first, which developed Rousseau's theory of "public will" to the extreme in the Soviet era, becoming the model of a total planned economy according to second-generation human rights theory, adopting the dictatorship of the working class domestically and building an "imperial system" of reciprocal socialist allies internationally.  The third, the EU model, is positioned between the first two types and strikes a balance between the two human rights theories, adopting a democratic-socialist economic and social policies domestically and an egalitarian alliance system internationally. The fourth is the American model, in which the two human rights concepts are in a state of constant struggle, pushing against one another and alternating in terms of domination, and gradually, in the post-war period, becoming a world empire model with first-generation human rights theory as the "essence" and second-generation of human rights theory as "function."
 
Since the founding of New China, as the two human rights theories have intertwined and alternated, a new model is gradually forming in which second-generation human rights theory serves as the "essence" and the first-generation human rights theory as the "function."  In terms of domestic economic and social policies, China must undoubtedly uphold the concept of socialism as promoted by second-generation human rights theory as it rebuilds and improves its economic, social, political and cultural systems in accordance with the "people-centered" human rights theory, even as it make free property, the market economy, and free trade into integral parts of the socialist system, fully developing the positive features of government and market, equality and freedom, and first- and second-generation human rights theories. 

In terms of the global order, as dictated by second-generation human rights theory, China respects the rights of different countries and civilizations to explore the modernization path that suits their own needs, and advocates giving full play to the active role of the United Nations system, promoting various systems of equal alliances to play an active role in global governance, and building various institutions around the community of human destiny, so as to adapt to the inevitable trend of "deep globalization.” 
 
Thus we see that that the competition between China and the United States today revolves around different human rights theories and their practices. While the two human rights theories developed in the recent West have always been in a state of tension, the Chinese practice is even now searching for a development path that allows the two human rights theories to exist in perfect harmony, which is a product not only of the historical experience of China's great achievements in human rights, but more importantly is a product of the Chinese wisdom of seeking a "middle way." Human rights were not a dominant concept in traditional Chinese civilization, and were ultimately subordinate to the order of Heaven; only in terms of this order could individual find their own place and define their own boundaries. In China, the two human rights theories can be used interchangeably according to the situation and can change with the times, thus overcoming the either/or dichotomy inherent in Western fundamentalism, and allowing the market and the government, capital and the people, to be perfectly integrated, serving together to build the Chinese order and the community of common destiny.
 
Links to other texts on this site
 
For texts related to liberalism, click here
 
For texts related to Sino-American relations, click here
 
Translation
 
Sino-US Competition against the Backdrop of World Empire
 
 GATT: A Compromise between Two Philosophies of Human Rights
 
Through concepts such as "national self-determination" and the "Open Door" policy, the U.S. evolved an internal mechanism that combined first-generation human rights with second-generation human rights, and seized the opportunity offered by the two world wars to inherit the mantle of world empire from Great Britain and create an "invisible empire," a new stage in history. The United Nations system and the Bretton Woods system that came into being after World War II are the products—one political, one economic—of these two human rights theories.

In designing the Bretton Woods system, the primary goal of the United States was to destroy the global trade divisions created by the imperial preferences of the British Empire, and to take advantage of the post-war American dominance of the global economy to push Europe and Asia to adopt an "Open Door" policy of free trade and investment, so that the United States could gain access to the resources and markets of the entire world, rebuilding a world empire of free trade, and achieving what Paul Kennedy called the "pax Americana." In fact, at the moment when the British Empire moved from free trade to imperial preferences, the United States was shifting from the mercantilism of Roosevelt’s New Deal to a policy of free trade, a change which precisely reflected the ebb and flow of imperial power.
 
The British Empire grew naturally into a world empire without the English paying too much attention, while the United States, from the moment of its founding, systematically studied the lessons of the British Empire's successes and failures and constructed a world empire through careful planning and design. For this reason, unlike the organically created British Empire, which promoted free trade based on industry and finance, and thus evolved into an economic system that freely regulated the balance of payments, the United States had a set of systematic plans for building a world empire after World War II, and the key to this economic planning was learning the lessons from the mercantilist policies of various countries that had contributed to the Great Depression, and on that basis rebuilding the world trade system of free trade. 
 
After World War II, the capitalist camp held discourse rights on "trade" (first-generation human rights) and the socialist camp held discourse rights on "human rights" (second-generation human rights). The United States originally wanted to design the World Trade Organization to promote free trade in accordance with first-generation human rights, and signed the famous Havana Charter of 1948. However, it was difficult for the newly independent countries that embraced second-generation human rights to agree with the destruction of national sovereignty implicit in such plans, especially after the Great Depression and the two world wars, when people keenly felt the pain of the disasters caused by laissez-faire economic policies.

Even in the United States, the liberalism of the New Deal meant that people also understood that a free economy must be linked to full employment and government regulation, and that the "economic security" of capitalism must be linked to the "social security" and "justice" emphasized by the New Deal, and it was even hoped that the postwar order would be shaped by New Deal liberal ideas. Against this background, a compromise between the two human rights philosophies resulted in the U.S.-led General Agreement on Tariffs and Trade (GATT),  a multilateral negotiating mechanism in which countries with different economic systems, at different stages of development, and with different ideologies could join in negotiations on tariff and trade issues. This compromise combined the market freedom emphasized by first-generation human rights theory with the government regulation emphasized by second-generation human rights theory, and came to be known as “embedded liberalism.”
 
The GATT system was designed to give developing countries modest scope for tariff protection, and it was a more legitimate world economy than the free trade regime of the British Empire. The free trade promoted by the British Empire was practiced in the context of naked colonialism, where colonies or semi-colonies were permanently consigned to the margins of the world system. By contrast, the United States championed free trade during the era of Communist-inspired anti-imperialism and anti-colonialism, an era of national liberation in which many colonies became independent countries.

In this era, when sovereign states sought independence and equality, the free trade proposed by the United States had to accord a certain amount of regulatory power to these sovereign states. Despite persistent U.S. efforts to limit GATT discussions to the technical sphere of "trade," hoping thereby to avoid the influence of second-generation human rights (the right to economic and social development) promoted by socialist movements, and thus to keep “trade” and “human rights” separate one from the other, a certain relationship between the two continued to exist nonetheless.  This means that the historical environment in which the British Empire built is free trade world empire was gone forever.
 
In contrast to the completely open free trade system practiced by the British Empire, the Bretton Woods system provided space for sovereign countries to solve employment and social problems while preventing them from adopting mercantilist policies that endangered the global economic order, thus avoiding the strong protectionist backlash caused by the British Empire's radical free trade. Arguably, this is a more moderate and rational economic global order than the free trade of the British Empire.

However, we must note that the transition of the world economic system from the era of the British Empire to that of the American Empire actually marks an important change in the logic of capitalist profit extraction. The main form of capital accumulation in the British Empire was to gain commercial and trade advantages through manufacturing advantages, and on that basis gain financial advantages. In comparison, capital accumulation in the post-war American order was achieved not only through the financial hegemony of the gold-dollar, and later, the petro-dollar, but more importantly, under U.S. had already  established the superiority of "corporate capitalism" during the era of British hegemony, and American multinationals responded to the impact of global trade liberalization by integrating global business networks and effectively internalizing the transaction costs of international trade. The most typical example of the new corporate management style can be seen in the rise of the Fordism and Taylorism. The increased efficiency of corporate management accelerated the expansion of these companies and eventually led to the formation of multinational corporations, a new form of economic and technological monopoly.
 
Free trade in the British Empire was, as the Manchester School conceived it, a global commercial network of countless small shopkeepers; free trade in the United States was controlled by a handful of huge transnational oligarchs. A comparison of the two profit extraction models, British and American, is perfectly reflected in the Chicago School economists' argument that whether the market or the firm is more efficient ultimately depends on which is better at lowering transaction costs. Multinational corporations internalize the market costs of free trade and thus are more conducive to lowering transaction costs. These multinational corporations have monopoly positions in the global economy, as well as privileges and authority in many sovereign countries (especially third world countries), to the point of being able to influence the politics and economy of these countries.

In this sense, the U.S. desire for free trade is far less intense than that of the British Empire in its heyday, because the trade protection policies of any sovereign country are equally beneficial to the American multinational corporations doing business in that country, and the profits earned by the multinational corporations in those countries eventually flow back to the U.S. in the form of dollars. As the Chinese complained during the US-China trade war, many of the products that China exports to the US are made by US multinationals that set up factories in China, and the Chinese earn only a fraction of the profits from labor and processing.
 
The Two Faces of World Empire: "Free Trade" and "Fair Trade"
 
Although the ideal of free trade desired by the United States could not be realized immediately due to external pressure from the socialist camp and resistance from developing countries in the GATT negotiations, the United States made full use of its economic advantages to continuously promote trade liberalization in the context of GATT negotiations. To this end, the U.S. launched "development economics" and the "modernization theory" on which it is based. These theories claim that foreign trade is the "engine" of economic development, emphasizing that only by vigorously developing foreign trade can backward countries boost economic growth. 

This is because foreign trade not only accelerates capital accumulation by expanding exports, but even more importantly improves industrial structure and achieves coordinated economic development through imports, and at the same time helps introduce advanced technologies, production methods, economic systems, and cultural concepts, among other things.  These theories drew developing countries into GATT, and they agreed to reduce tariffs and promote free trade as much as possible.
 
Nonetheless, in this "clubby" type of negotiating forum, second-generation human rights theories inevitably became an ideological weapon for developing countries against developed countries. Whether it was Wallerstein's theory of the world economic system or Amin's theory of dependency and underdevelopment, these left-wing ideas and Marxist theories became the ideological weapons of the Third World to criticize the Western-dominated global economic system in various international forums and to fight for their own rights to development. While developed countries attribute the economic underdevelopment of developing countries to the immaturity of their economic and political systems, developing countries see instead the irrational global economic order dominated by the West, and even criticize this order as "neo-colonialism." 

Second-generation human rights discourse combined with global left-wing movements to promote the "global justice movement" in the field of trade, and "fair trade" thus became the demand of developing countries. The reason why developing countries fight for "fair trade" and use "fair trade" to criticize the world imperial order constructed by developed Western countries is that their entry into this order has not resulted in the promised economic prosperity, but has instead led to increasing exploitation. The economic divide between the developed North and developing South countries resulting from the Bretton Woods system has grown ever deeper. 
 
Since the U.S. hoped to integrate the vast number of developing countries into its economic system through the GATT “club,” and to isolate the socialist camp with Cold War tactics, it had to withstand the pressure of developing countries criticizing and resisting certain ideas put forward by the U.S. in trade negotiations, and more importantly, to face the challenges posed by the economic revival of the EU and Japan, which the U.S. had promoted to win the Cold War. 

In response to these challenges, the “U.S. Trade Expansion Act of 1962” gave the President the power to take retaliatory measures should the U.S. be faced by "unreasonable" or "unfair" trade measures, and in 1974, the act was further amended to introduce the concepts of "fair but harmful" trade and "unfair trade," calling goods that meet the principles of fair trade but do not accord with U.S. interests "harmful." This marked a major adjustment in U.S. trade policy: in terms of strategic discourse on trade legitimacy, the emphasis shifted from "free trade" to "fair trade." 

In institutional terms, this led to an increasing shift towards unilateralism, which was outside the framework of GATT negotiations.  Using their economic power, the U.S. continuously revised its domestic trade laws so as to give the government ever stronger measures of trade retaliation and sanctions to force other countries to accept various so-called "fair trade" demands made by the United States. As a result, we note the gradual emergence of an organic interaction between U.S. domestic trade law and international treaties such as GATT, and between unilateralism and multilateralism.
 
At the outset, "fair trade" was a critique of the inequality caused by "free trade" by developing countries based on second-generation human rights theory, but it has now become an American criticism of government involvement in trade (including subsidies, state-owned enterprises, labor rights, ecological damage, etc.) based on U.S. ideas of “free trade.”  There are two different understandings of "fair trade,” and this difference is closely related to what are commonly referred to as "substantive justice" and "procedural justice.” 

If we measure "free trade" by the objective extent to which trade barriers are kept low, then the concept has no universally accepted standard, because the strong and the weak have different understandings of fairness. When the strong and the weak compete, the strong emphasize a common starting line, i.e., a "fair competition" based entirely on market freedom, which means that any government assistance to trade is "unfair trade.”  This kind of "fairness" is actually the embodiment of the concept of procedural justice in the field of international trade.

However, for the weak, such laissez-faire free trade amounts to the plunder of developing countries, a process which will permanently consign developing countries to a marginal position in which their dependence precludes their development; for this reason, genuine "fair trade" must recognize the "right to development" of developing countries to use government power to promote economic development, so as to achieve equality between countries, and such "fair trade" fully embodies the concept of substantive justice.
 
Behind the political game and discourse debate between strong and weak around the issue "fair trade," we find essential differences between two generations of human rights theories. The United States has not always won this long debate over human rights, especially the debate over market trade and national development, and the right to freedom and equality.  In the 1960s and 1970s, influenced by the events of May 1968 in Europe and the Cultural Revolution in China,  students on American college campuses launched their own powerful "cultural revolution," and second-generation socialist-driven human rights theories, with equality as their core value, gained global dominance.

In contrast to the class, gender, ethnic, and international equality pursued by socialist countries, the U.S. had fallen deep in the abyss of widening economic inequality, racial segregation, gender discrimination, and the Vietnam War. In the face of this pressure, in order to seize the discursive high ground on human rights issues, the U.S. began with racial segregation as a starting point and promoted a "civil rights movement" involving gender equality, gender emancipation, and the protection of the rights of the accused. Since then, the Marxist-influenced "left wing" has shifted to the more postmodern "cultural left," and the U.S. Democratic Party consequently also underwent a fundamental shift.
 
Thus we see that when different countries talk about "fair trade," they understand the concept in the context of their own interests. Developing countries often use "fair trade" to strengthen the protection of their internal economic development against the free trade policies that developed countries try to promote, especially in the face of the impact of global trade liberalization promoted by the Washington Consensus, and "fair trade" has always been a theoretical tool for the global left to criticize this trend. The U.S. emphasis on "fair trade" is precisely to combat such protectionist measures taken by its competitors, with the aim of promoting free trade. In this sense, "fair trade" is actually a synonym for the U.S. demand for other countries to open their markets and adopt "free trade," a new discourse America has been forced to adopt to protect its free trade policies in the historical context of the progress of second-generation human rights discourse throughout the world.
 
"Free trade" and "fair trade" are merely two different faces of the United States when confronted with different situations in the historical process of promoting world empire, and both are useful tools in the toolbox of U.S. trade policy. The United States can always define what "fair trade" means according to its own interests, and can choose whether to use "free trade" or "fair trade" as its justification for different opponents and different situations. 

For example, during the Reagan era, the United States adopted a laissez-faire policy and restored the idea of "free trade," but in his second term, the huge foreign trade deficit led Reagan to change direction and demand "fair trade.” It was Reagan who formally introduced the concept of "free and fair trade" in his “1985 Trade Policy Action Plan” and formed the Trade Countermeasures Group, which established the arguments and legal logic to deal with trade issues. In the post-Cold War era, the U.S. used unipolar hegemony to accelerate the pace of world empire building: on the one hand, it employed neoliberal theories to expand U.S. economic power.   At the same time, in order to ensure the U.S. ability to control the global economy, the Clinton administration even made "economic security" the primary goal of U.S. foreign policy, and publicly declared "fair trade" as part of the national economic strategy to expand trade.

In short, "free trade" and "fair trade" are two parallel tracks in the construction of the U.S. world empire, both aiming to fight against competitors and ensure U.S. control over the world economy.   On the one hand, "free trade" is used to attract and control developing countries, while on the other, "fair trade" is used to deal with the challenges of the EU, developed countries in East Asia and even emerging economies such as the BRICs.
 
What is even more noteworthy is that in the context of world empire building, we see a convergence between right-wing globalization, which advocates "free trade", and left-wing globalization, which advocates "fair trade."  Right-wing globalization demands the elimination of various non-tariff barriers (such as subsidies, dumping, etc.) in order to liberalize global trade with the idea of "free trade," while left-wing globalization demands the strengthening of the protection of labor and the environment in global trade in order to protect human rights.

However, the labor and environmental protections demanded by left-wing globalization undoubtedly increase the cost of developing countries' export products significantly, which will eventually weaken the competitiveness of developing countries' industrial products in global trade.  In March of 2021, the West tried to use human rights terms such as "forced labor" and "genocide" and "human rights" to ban China's Xinjiang cotton from global trade, thus using “human rights” issues to win the trade war.  Both left-wing globalization and right-wing globalization are objectively weakening the power of sovereign states, but what right-wing globalization is building is world empire, while the Western left wing, which accepts the reality of globalization, is attempting to convert “world empire” into “utopia” through the resistance of the “masses.” 

In this sense, the right wing and the left wing in the United States often form a useful pair in the debate between "free trade" and "fair trade," just like the two faces of the Trump administration and the Biden administration, the former focusing on trade and the latter on human rights—two opposing yet cooperative forces in the construction of a U.S. world empire. The United States is able to switch freely between "free trade" and "fair trade" because the world empire it has constructed gives it "absolute sovereignty" over international law, so that U.S. domestic law can override international law. 
 
Neoliberalism's World Empire: Trade and Intellectual Property
 
Since the “Trade Expansion Act of 1962” raised the issue of "unfair trade," and in the face of increasing commercial frictions, the U.S. has continued to revise its trade laws to strengthen the U.S. president's ability to act unilaterally outside of GATT, resulting in what is called "Section 301," according to which the U.S. Trade Representative is authorized by the President to take unilateral punitive and retaliatory measures against any other country that violates "fair trade" to the detriment of U.S. interests. Using "Section 301," the United States repeatedly launched trade wars against Japan in the 1970s and 1980s to combat Japanese manufacturing challenges to the United States.  In 1985, the U.S. forced the yen to appreciate against the U.S. dollar through the famous "Plaza Accord," which employed financial measures to resolve trade frictions between the U.S. and Japan, after which the Japanese economy entered a long-term recession.

At the same time, the U.S. also launched a "Super 301 investigation" against Japan, and in 1989 the two countries signed the "U.S.-Japan Structural Barriers to Trade Agreement," which not only required Japan to open up its domestic market, but also forced Japan to modify its domestic economic policies. For Japan, a sovereign state, these two agreements clearly represent “unequal treaties” requiring the surrender of Japan’s sovereign rights under humiliating terms. The unilateral punitive retaliation of the United States worked not only because Japan's outward-looking economy was already embedded in the U.S.-dominated world economic system, but also because Japan was already integrated into the U.S. world imperial order as a "vassal state.”
 
In the face of challenges from emerging countries in the field of manufacturing and trade, the U.S. has been strengthening its ability to act unilaterally on the one hand, launching “301 investigations” on the grounds of "fair trade," and on the other hand, has been trying its best to consolidate its advantageous position in GATT negotiations, forming a dual-track interaction with domestic law to promote international law. In this regard, linking intellectual property issues with trade issues and using the "fair trade" discourse to incorporate intellectual property into the GATT negotiations is undoubtedly a new U.S. strategy, employed since the 1980s to strengthen its world empire.
 
Since its founding as an independent nation, the United States has understood that the secret of European imperial hegemony lay in the rise of technology-driven manufacturing. For this reason, the U.S. founders went so far as to include intellectual property protection provisions in the Constitution, which seems to be unique among the constitutions of the world. The U.S. government has been a "corporate state" from the beginning, and with the help of trade protection policies, the U.S. government has always strongly promoted scientific and technological progress and industrial development, finally ushering in the Second Industrial Revolution.

During the two world wars, European scientists hastened to take refuge in the United States, and the United States quickly rose to the top of global science and technology. The famous report, "Science: The Endless Frontier," prepared before the end of World War II, further laid the foundation for winning the Cold War with the power of science and technology.  After encountering industrial challenges from the European Union and Japan in the 1970s, the United States realized that it had maintain its dominant position in the high-tech industry by strengthening technological innovation and intellectual property protection. In 1979, President Carter formally proposed a national development strategy to protect intellectual property rights (IPRs) and enacted a series of laws to ensure their protection.
 
However, the vast majority of countries, especially developing countries, oppose the developed countries’ monopoly of science and technology. But without the recognition of the international community, it is impossible for developing countries to comply with the rules of intellectual property protection that mainly safeguard the interests of developed countries. In 1988, the U.S. overhauled Section 301 of the U.S. Trade Act, explicitly defining infringement of U.S. intellectual property rights as "unfair trade" and authorizing the U.S. President to establish a special office to investigate countries that engage in such conduct, up to and including the imposition of trade sanctions. This is known as "Special 301." Ever since, the Office of the U.S. Trade Representative has become the spokesman of multinational companies on the issue of intellectual property protection, launching intellectual property investigations against countries around the world, especially emerging economies, with Japan, South Korea, Brazil, Southeast Asia and China being targeted for investigation, and launching a series of intensive intellectual property negotiations. 
 
To further promote the legitimacy of IP protection, the concept of  the "knowledge economy" was publicized in the media, and the story Microsoft President Bill Gates’s wealth became a symbol of the knowledge economy, thus making IP into a "new human right." The U.S. tried to use the new intellectual property rules to bring major economies throughout the world into its intellectual property empire. In the Uruguay Round of GATT negotiations, the U.S. used a "special 301 section" as a backup to the threat of sanctions, and in the final stage muscled intellectual property rights, an issue unrelated to trade and not originally planned in the negotiations, onto the agenda, and finally signed the famous Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in 1994. The TRIPS Agreement violates the GATT principle of national autonomy and adopts a "one-size-fits-all" approach, undermining the autonomy of countries to determine their own legislation on intellectual property protection and setting minimum standards of intellectual property protection that all countries must accept. 
 
At that time, many developing countries were unaware of the IPR strategies of U.S. multinational corporations. When the U.S. lured developing countries to accept the TRIPS agreement by opening up its agricultural market, many developing countries thought that they could at least benefit in the agricultural field even if their industries suffered. What they did not know was that U.S. oligarchs in fields such as biology, pharmaceuticals, and genetics had already monopolized various patented technologies, so that planting and breeding in traditional agriculture were controlled by these transnational oligarchs. 

The global intellectual property protection promoted by the TRIPS Agreement signaled the dawn of a new era. Following the era of industrial capitalism, in which industrial capitalists controlled labor and surplus value, and the era of financial capitalism, in which bankers control capital, securities, and bonds, we now enter the era of "information capitalism" in which abstract intellectual property rights are controlled by information oligarchs such as Apple, pharmaceutical oligarchs such as Pfizer, and biological oligarchs such as Monsanto. These multinational corporations, who control knowledge and information, "collect rents" from users, just like the medieval landlords in the feudal era, who controlled the land, collected rents from tenants.
 
It is important to note that in the final phase of the TRIPS negotiations, the Cold War was already over. The socialist camp that had previously supported developing countries fell apart, and socialist theory and second-generation human rights discourse also went into decline. What took its place was a worldwide conservative revolution, in which classical liberalism fully revived first-generation human rights theory, and in the new historical setting became a Neoliberalism dedicated to the revival of classical liberalism, breaking completely with New Deal left-wing liberalism.

Neoliberalism not only resurrected first-generation human rights theory, but more importantly, used first-generation human rights theory to transform second-generation human rights theory, using the concept of economic liberalization to promote the “democratization” of politics and the “liberalization” of cultural values, thus destroying the original core claims of second-generation human rights theory regarding popular sovereignty, equality between states, and socialism.
 
Thus we see that the end of the Cold War and the neoliberalism of the Washington Consensus integrated economic, political and cultural liberalization in unprecedented ways, providing new prospects for the American world empire. The United States can now finally set aside the respect for national sovereignty and governmental autonomy of the Bretton Woods system, abandon the national sovereignty protected by second-generation human rights doctrines, and shape a more thoroughgoing world empire in full accordance with the principles and logic of neoliberalism. 

It was at this precise moment of the historical process of the American acceleration of its postwar efforts to build world empire that the functions of the International Monetary Fund and the World Bank underwent fundamental changes, from institutions that were once devoted to stabilizing global finance to super-sovereign institutions for U.S. management of world empire. At the same time, GATT, once a mechanism for multilateral consultation and negotiation among sovereign states, was also thrown into the dustbin of history and replaced by a brand new governing body, the World Trade Organization (WTO). Compared with GATT, the WTO is distinguished by its strong dispute settlement mechanism, and thus became the legal enforcement arm of world empire, situated above sovereign states, and a symbol of the "global rule of law."

Thus, the WTO, together with the IMF and the World Bank, have been ridiculed as the "Unholy Trinity" through which the U.S. develops its world empire.  In this Neoliberal blueprint for world empire, the idea that "human rights trumps sovereignty" or even the notion of "humanitarian interventions" have become powerful tools allowing the U.S. to destroy the sovereignty of other countries and incorporate them into its world empire. In the name of "human rights protection," the U.S. launched the "third wave of democratization", and in the name of the "war on terror," it proposed the "Greater Middle East Democracy Plan" to transform the Middle East.  In order to promote democratization in other countries and regions, the U.S. has even launched a new form of warfare—“color revolutions"—to turn its world empire into a so-called "democratic empire" or "human rights empire."
 
The "Chinese Way:"  The Community of Common Destiny and the Reconstruction of Human Rights Theory
 
With the onset of modernity, China was forced to enter the European-dominated world system and began its transformation away from agriculture, taking the path of modernization leading to commerce and industry.  This meant that from the beginning, China was defined as a semi-colony on the periphery of the world system, which condemned modern China to a fate of "dependence and underdevelopment.”  To change this state of marginality and dependence, China first had to achieve political independence, the only way that it could adopt protectionist measures to promote industrialization, achieve national prosperity, and move towards the center of the world system. Thus political independence, political autonomy, and global counter-hegemony have always been closely linked to changes in the world system.
 
How can newly independent countries promote their own industrialization? One path is that of the market economy and capitalism adopted by Turkey and India, and another is the socialist path adopted by the Soviet Union and China. The former tried to promote their industrialization under the Western-dominated world system by adopting the mercantilist strategy practiced by the Western powers during their own rise to power. However, the mercantilist development strategy of the Western powers was premised on war, and without the readiness and ability to go to war, the mercantilist strategy is unlikely to succeed. Moreover, despite gaining formal political independence, Turkey and India were ultimately unable to break free from their dependence on the Western-controlled world system.

By way of contrast, from the very outset, those countries that chose through the socialist path saw through the dependence of the country's bourgeoisie on the world system and its comprador nature, and therefore chose to rely on the working class and even the peasant class to gain complete political independence, even daring to confront the European and American powers that maintained the world system by means of war, and daring to endure the pressure and consequences of being cut off from the world economic system. The two camps that confronted each other at the political and military level during the Cold War were at the same time two different economic systems, in which the Western capitalist system adopted a policy of blockade, restriction, isolation and encirclement of the socialist camp.
 
It is precisely from the perspective of the world imperial system that we can understand China’s choice—and destiny—in its struggle for national independence and liberation since the 1911 Revolution. The key is not whether China wants to join the world system, but with what status and from what position it joins this system, and its political status and position in turn depend on its economic and military strength. In this sense, the new China, established in 1949, entered a critical moment in history when crisis and opportunity coexist.

The "crisis" stemmed from the political and military suppression from the world imperial system, which dictated that the only way for China to gain an independent political status in the world system was to experience tests like the resistance to the U.S. in Korea, the Sino-Indian border war, and China’s assistance to Vietnam in their struggle against the U.S.[3]  The "opportunity " lies in the fact that national liberation and national rebirth gave China the strength and capacity to embark on an independent path industrialization, completely freeing it from its prescribed dependent character and marginal status in the world system, and laying a solid foundation for China to move toward the center of that world system. The socialist planned economy adopted after the founding of New China produced a rapid "leap" forward, from a backward agricultural country to an industrialized country, without relying on the capitalist world system.  This was the path of industrialism, which is different from physiocracy and mercantilism. 

At the time, China was still a backward agricultural country, unable to obtain sufficient and cheap raw materials through global commercial trade or colonization, but still needing to develop modern defense and heavy industry directly, without going through the stage of resource accumulation and knowledge accumulation via the development of commerce.  It is not hard to imagine how difficult this was. This "heavy industry" development strategy cost China a great deal, but also achieved great success, quickly changing China's long-standing status as a victim of colonization and plunder, instead becoming a global power, and launching a "three-way game" with the Soviet Union and the United States.
 
However, this development strategy takes second-generation human rights theory to an extreme and inevitably winds up choking out first-generation human rights theory. In the long run, this situation is unsustainable. In the context of the Cold War, the Western world exported first-generation human rights concepts to socialist countries in order to dismantle their industrialization efforts. This meant that socialist countries, having achieved success in industrialization, had to recognize the achievements of first-generation human rights theory and rejoin the world system driven by globalization.

Due to political failures, in the process of rejoining the world system, the Soviet Union and Eastern European countries completely lost their independent political sovereignty, and as they accepted the "Washington Consensus" as marketed by the world empire, their industrial capacities were destroyed, and entire countries were relegated to marginal or semi-marginal positions within the world imperial system. When China rejoined the world following reform and opening, it consistently maintained its political independence and thus its autonomy in the choice of its economic development strategy.
 
It is in this very context that we see that China's economic development strategy after the reform and opening up has always included two processes: on the one hand, integrating into the world system as quickly as possible, fully absorbing outside knowledge, capital, institutions, and laws so as to develop and strengthen itself and speed the establishment of a market economy system linked to the world economy; on the other hand, always taking advantage of its political autonomy to develop an independent and autonomous development strategy.

For example, the Chinese government has always maintained control over finance to avoid being manipulated by Western financial capital after joining the world system; the Chinese government has insisted on formulating a step-by-step development strategy, especially in the field of trade, initially aiming at "earning foreign exchange through exports," promoting the export of primary products through a series of policies such as export tax rebates, and using the earned foreign exchange to bring in high-tech; in recent years, as the economy has developed, the Chinese government has made full use of the manufacturing advantages accumulated during the "heavy industry" stage to accelerate industrial upgrading and advance China’s position in global technology supply chains, gradually challenging the U.S. technological industrial superiority and its dominant world imperial system. This is the root cause of today's competition between China and the United States.
 
In contrast to the failed transitions of the Soviet Union and Eastern Europe, China's transition has been successful because it has not completely abandoned second-generation human rights theory in a posture of surrender, as they did. While re-embracing first-generation human rights theory, China has continued to adhere to the ideals of second-generation human rights theory, perfectly integrating the two.

From this perspective, the core essence of our "socialist market economy with Chinese characteristics" is this perfect marriage of first- and second-generation human rights theories. Reform and opening coincided precisely with the revival of first-generation human rights theory in the United States, as neoliberalism swept the world, and first-generation human rights theory along with the strategy of "world convergence," which advocated full integration into the world imperial system, became mainstream ideology in China. However, with the rise of China and its strategic transformation during the "critical decade" of the U.S.-China relationship, China's dominant ideology has inevitably shifted to a comprehensive revival of second-generation human rights and the socialism it promotes, and a reconstruction of human rights theory on this foundation.
 
As already discussed above, both U.S. domestic institutions and ideology, as well as the U.S. foreign strategy of world empire, are a combination and application of the two human rights theories analyzed in this essay.  What, then, are the differences between the internal packaging and concrete application of the two human rights theories by the United States and China?
 
To briefly summarize the discussion in the two parts of this essay, we can see that since the development of modern human rights theory in Europe, five "ideal types"  have evolved around the concept of human rights. The first is the historical Adam Smith-style British model, a laissez-faire model based on first-generation human rights theory, with a parliamentary system dominated by the merchant class on the domestic front and a world imperial system of free trade outside. The second is the Stalinist model, the opposite of the first, which developed Rousseau's theory of "public will" to the extreme in the Soviet era, becoming the model of a total planned economy according to second-generation human rights theory, adopting the dictatorship of the working class domestically and building an "imperial system" of reciprocal socialist allies internationally.  The third, the EU model, is positioned between the first two types and strikes a balance between the two human rights theories, adopting a democratic-socialist economic and social policies domestically and an egalitarian alliance system internationally. The fourth is the American model, in which the two human rights concepts are in a state of constant struggle, pushing against one another and alternating in terms of domination, and gradually, in the post-war period, becoming a world empire model with first-generation human rights theory as the "essence" and second-generation of human rights theory as "function."[4]
 
Since the founding of New China, as the two human rights theories have intertwined and alternated, a new model is gradually forming in which second-generation human rights theory serves as the "essence" and the first-generation human rights theory as the "function."  In terms of domestic economic and social policies, China must undoubtedly uphold the concept of socialism as promoted by second-generation human rights theory as it rebuilds and improves its economic, social, political and cultural systems in accordance with the "people-centered" human rights theory, even as it make free property, the market economy, and free trade into integral parts of the socialist system, fully developing the positive features of government and market, equality and freedom, and first- and second-generation human rights theories. 

In terms of the global order, as dictated by second-generation human rights theory, China respects the rights of different countries and civilizations to explore the modernization path that suits their own needs, and advocates giving full play to the active role of the United Nations system, promoting various systems of equal alliances to play an active role in global governance, and building various institutions around the community of human destiny, so as to adapt to the inevitable trend of "deep globalization.” 
 
Thus we see that that the competition between China and the United States today revolves around different human rights theories and their practices. While the two human rights theories developed in the recent West have always been in a state of tension, the Chinese practice is even now searching for a development path that allows the two human rights theories to exist in perfect harmony, which is a product not only of the historical experience of China's great achievements in human rights, but more importantly is a product of the Chinese wisdom of seeking a "middle way." Human rights were not a dominant concept in traditional Chinese civilization, and were ultimately subordinate to the order of Heaven; only in terms of this order could individual find their own place and define their own boundaries. In China, the two human rights theories can be used interchangeably according to the situation and can change with the times, thus overcoming the either/or dichotomy inherent in Western fundamentalism, and allowing the market and the government, capital and the people, to be perfectly integrated, serving together to build the Chinese order and the community of common destiny. 
 
In this sense, the rise of China necessarily entails a reconfiguration of human rights theory. In the struggle for international discourse and in the process of promoting global governance, China should always grasp the initiative in human rights discourse and criticize the human rights disaster brought on by the world imperial order promoted by the United States. The unrestrained power of capital under the world imperial system has brought about class oppression, racial oppression, and other human rights problems even within Western countries.

​More importantly, at the international level, this world empire has frozen in place the center-peripheral structure of West/non-West that has been grown up over the past centuries, and the U.S. has seized global wealth for its own benefit without taking responsibility for global governance, resulting in the "reverse globalization" trend that is now making waves around the world, resulting in the rise of nationalism, populism, and protectionism in many countries and intensifying conflicts in the international community. China’s rise can allow us to solve the governance problems caused by the decline of world empires through international consultation and dialogue and regional integration on the basis of second-generation human rights theory, to promote the next wave of globalization, to build "one world", and to share the "commonwealth of nations". 

Notes 


[1]强世功, “贸易与人权 (下) ——世界帝国背景下的中美竞争,” published in the online edition of Beijing Cultural Review/文化纵横 on January 3, 2022.  Originally published in Open Times/开放时代, in issue 2021.6. 

[2]Translator’s note:  Jiang is of course adapting Feng Guifen’s (1809-1874) well-known proposition to take Chinese learning as “essence” and Western learning as “function” or “substance.”

[3]Translator’s note:  Jiang of course uses the Chinese names for these conflicts:  the “Resist America Aid Korea War抗美援朝战争,” the “Sino-Indian Counterattack in Self-Defense War 中印边境自卫反击战,” and the “Aid Vietnam Resist America War 援越抗美战争.”

[4]Translator’s note:  Jiang is of course adapting Feng Guifen’s (1809-1874) well-known proposition to take Chinese learning as “essence” and Western learning as “function” or “substance.”